FR Doc E8-16859[Federal Register: July 29, 2008 (Volume 73, Number 146)]
[Rules and Regulations]
[Page 44101-44125]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29jy08-9]
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Part IV
Department of Education
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34 CFR Part 200
Improving the Academic Achievement of the Disadvantaged; Migrant
Education Program; Final Rule
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DEPARTMENT OF EDUCATION
34 CFR Part 200
RIN 1810-AA99
[Docket Id 2007-ED-OESE-130]
Improving the Academic Achievement of the Disadvantaged; Migrant
Education Program
AGENCY: Office of Elementary and Secondary Education, Department of
Education.
ACTION: Final regulations.
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SUMMARY: The Secretary amends the regulations governing the Migrant
Education Program (MEP) administered under Part C of Title I of the
Elementary and Secondary Education Act of 1965, as amended (ESEA).
These final regulations adjust the base amounts of the MEP Basic State
Formula grant allocations for fiscal year (FY) 2006 and subsequent
years (as well as for supplemental MEP allocations made for FY 2005);
establish requirements to strengthen the processes used by State
educational agencies (SEAs) to determine and document the eligibility
of migratory children under the MEP; and clarify procedures SEAs use to
develop a comprehensive statewide needs assessment and service delivery
plan.
DATES: These regulations are effective August 28, 2008. However,
affected parties do not have to comply with the new information
collection requirements in Sec. Sec. 200.83 and 200.89 until the
Department of Education publishes in the Federal Register the control
number assigned by the Office of Management and Budget (OMB) to these
information collection requirements. Publication of the control number
notifies the public that OMB has approved these information collection
requirements under the Paperwork Reduction Act of 1995.
FOR FURTHER INFORMATION CONTACT: James J. English, U.S. Department of
Education, 400 Maryland Avenue, SW., Room 3E315, 20202-6135. Telephone:
(202) 260-1394 or via Internet: james.english@ed.gov.
If you use a telecommunications device for the deaf (TDD), you may
call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed in the preceding
paragraph.
SUPPLEMENTARY INFORMATION: These regulations implement requirements of
the Migrant Education Program (MEP) as authorized under Part C of Title
I of the ESEA, as amended. On May 4, 2007, the Secretary published a
notice of proposed rulemaking (NPRM) for the MEP in the Federal
Register (72 FR 25228). In the preamble to the NPRM, the Secretary
discussed on pages 25230 through 25236 the major regulatory changes
proposed in that document. These proposed changes consisted of the
following:
Amending Sec. 200.81 to add to and improve program
definitions governing who is considered an eligible migratory child.
Amending Sec. 200.83 to clarify that a State's
comprehensive needs assessment and plan for service delivery must, as
required by the ESEA, include measurable program outcomes for the MEP
that relate to the performance targets the State has established for
all children.
Adding a new Sec. 200.89(a) to establish a procedure for
the Secretary to use State defect rates that the Secretary accepts as
the basis for adjusting the 2000-2001 counts of eligible migrant
children, and, thereby determine the base amount of a State's MEP award
for FY 2006 and subsequent years. This proposed regulation also
required, as a condition to an SEA's receipt of its final FY 2006 and
subsequent-year MEP awards, that an SEA conduct a thorough re-
documentation of the eligibility of all children (and the removal of
all ineligible children) included in the SEA's 2006-2007 MEP child
counts).
Adding a new Sec. 200.89(b) to establish the minimum
requirements an SEA must meet in conducting--(a) retrospective re-
interviewing, where needed, to examine and validate the accuracy of its
statewide eligibility determinations under the MEP, and (b) annual
prospective re-interviewing in order to ensure ongoing quality control
in all future eligibility determinations.
Adding a new Sec. 200.89(c) to--(1) establish the minimum
requirements an SEA must meet in documenting its eligibility
determinations under the MEP (including the use of a standard
Certificate of Eligibility (COE) form), and (2) clarify that the SEA is
responsible for accurate determinations of program eligibility.
Adding a new Sec. 200.89(d) to establish minimum
requirements for a system of quality controls that an SEA must
implement in order to promote accurate migrant child eligibility
determinations.
These final regulations contain the following changes from the
NPRM:
The definitions of agricultural work and fishing work in
Sec. 200.81(a) and (b), respectively, have been modified to remove the
terms ``generally'' and ``in rare cases'' when referring to work done
for wages or personal subsistence.
The definitions of in order to obtain and move or moved in
Sec. 200.81(c) and (g), respectively, have been revised to-- (1)
remove contradictory language and clarify that a move, for purposes of
determining MEP eligibility, must occur due to economic necessity, (2)
clarify that individuals who state that a purpose of their move was to
seek any type of employment, i.e., workers who moved with no specific
intent to find employment in a particular job, are deemed to have moved
with a purpose of obtaining qualifying work if the worker obtains such
work soon after the move, and (3) clarify the information that an SEA
must have to determine that a worker who did not obtain qualifying work
soon after a move did move in order to obtain qualifying work.
The definition of migratory agricultural worker in Sec.
200.81(d) has been revised to clarify that agricultural work includes
dairy work.
The definition of principal means of livelihood in
proposed Sec. 200.81(i) has been removed.
The definitions of migratory agricultural worker and
migratory fisher in Sec. Sec. 200.81(d) and (f), respectively, have
been revised to remove the reference to ``principal means of
livelihood'' and clarify that, in order to establish MEP eligibility, a
move as defined in Sec. 200.81(g) made by a migratory agricultural
worker or migratory fisher must occur due ``to economic necessity.''
Section 200.81(h) has been revised to clarify that the
term personal subsistence means that the worker and his or her family,
as a matter of the family's economic necessity, consume, as a
substantial portion of their food intake, the crops, dairy products,
and livestock they produce or the fish that they catch.
To simplify the definition of in order to obtain, we have
added a new definition of qualifying work in Sec. 200.89(i) to mean
temporary employment or seasonal employment in agricultural work or
fishing work.
The definition of seasonal employment in Sec. 200.81(j)
has been revised to clarify that seasonal employment is employment that
occurs only during a certain period of the year due to the cycles of
nature and that, by its nature, may not be continuous or carried on
throughout the year.
The definition of temporary employment in Sec. 200.81(k)
has been
[[Page 44103]]
revised to simplify how temporary employment is determined and to
provide greater clarity and flexibility as to how (when and how often)
an SEA must validate that employment that appears to be constant and
year-round can reasonably be considered temporary employment.
Section 200.89(a)(2) has been revised to clarify that the
``thorough re-documentation'' referred to in this paragraph means that
an SEA must examine its rolls of all currently identified migratory
children and remove from the rolls all children it judges to be
ineligible based on the types of problems identified in its statewide
retrospective re-interviewing as causing defective eligibility
determinations.
Section 200.89(b)(1)(i) has been revised to clarify that,
in addition to those States that have not yet conducted retroactive re-
interviewing, any SEA that submitted a State defect rate that is not
accepted by the Secretary, or that has a problem in identification and
recruitment that is subject to corrective action, will also need to
conduct retrospective re-interviewing.
Section 200.89(b)(2)(iii) has been revised to permit, in
prospective re-interviewing, use of alternative interviewing methods
including telephone re-interviews if face-to-face re-interviewing is
found to be impractical without regard to whether, as the NPRM would
have required, the circumstances making face-to-face re-interviewing
impractical would be considered ``extraordinary.''
Section 200.89(d)(3) has been revised to permit more
flexibility in how an SEA transmits its responses to eligibility policy
questions to all its local operating agencies (LOAs).
Section 200.89(d)(7) has been revised to clarify that an
SEA's policy for implementing corrective actions includes addressing
monitoring or audit findings of the Secretary, as well as those of the
State.
These changes are explained more fully in the Analysis of Comments
and Changes section that follows.
Analysis of Comments and Changes
In response to the Secretary's invitation in the NPRM, 26 parties
submitted over 125 comments on the proposed regulations. An analysis of
the comments and of the changes in the regulations since publication of
the NPRM follows. We discuss substantive issues primarily under the
sections of the regulations to which they pertain. Generally, we do not
address technical and other minor changes--and suggested changes the
law does not authorize the Secretary to make.
General
Comments: Several commenters noted generally that the proposed
regulations clarified and more fully explained some confusing elements
of the current regulations and non-regulatory guidance. One commenter,
however, suggested that in light of Congress' plans to reauthorize the
ESEA, the Department should wait to issue any of the new regulations
and, instead, revise the Department's non-regulatory guidance on the
MEP. Three other commenters suggested that we not change the program
definitions prior to reauthorization of the ESEA.
Discussion: The Secretary appreciates the commenters' recognition
that the proposed regulations represent an attempt to clarify confusing
issues in the current regulations and non-regulatory guidance.
The Secretary does not agree that issuance of final regulations
should await the next ESEA reauthorization. We do not know when
Congress will reauthorize the ESEA and the MEP, and the issues
addressed in these regulations--improved definitions, an updated
allocations process, and defined quality control procedures--are needed
now in order to resolve serious problems and implement essential
improvements in program operations. Moreover, the Secretary believes
that the definitions established in these final regulations will
continue to be useful, even after reauthorization, in helping to
standardize and otherwise improve the clarity and accuracy of State
eligibility determinations. These definitions will help to ensure the
basic integrity of the MEP and that the MEP benefits those children it
is designed to serve.
Changes: None.
Paperwork Burden and Potential Costs and Benefits
Comments: Five commenters expressed concerns about the potential
costs and burden associated with several sections of the proposed
regulations. Three commenters expressed concern about the estimated
$4.5 million of annual additional costs of collecting information
needed to implement the proposed regulations [72 FR 25236]. While
acknowledging that States already conduct some of these activities in
order to implement their statutory responsibilities, these commenters
stated that much of these additional costs would be attributable to
unnecessary activities that the regulation would require. Another
commenter questioned the accuracy of our statement in the NPRM [72 FR
25236] that the proposed regulations would not add significantly to the
costs of implementing the MEP. Still another commenter noted that the
estimates of time and funds in the associated OMB information
collection package 1810-0662 did not differentiate between States that
receive large and small MEP allocations, and that requiring each State
to spend a total of 20,691 hours to comply with the regulations would
overwhelm States with small MEP allocations and negatively affect their
ability to provide direct services to migratory children. The commenter
also questioned the accuracy of the Department's assertion in the
preamble to the NPRM [72 FR 25232] that much of the annual survey in
proposed Sec. 200.81(k), regarding the definition of temporary
employment, reflects work States already do to update information on
eligibility and continued residency of previously identified migratory
children. Three commenters also expressed concern about the ability of
States with small MEP allocations to fulfill their responsibilities
under Sec. 200.89(c) to document child eligibility, and stated that
the paperwork burden associated with meeting these requirements might
compel these States to end their participation in the MEP.
Another commenter stated that we had, in our OMB information
collection package (1810-0662), greatly underestimated the average time
needed to complete re-interviews, determine eligibility, complete and
update COEs, and implement the other quality control procedures
identified in the proposed regulations. The commenter suggested that
States would need four hours rather than two hours to conduct each re-
interview, four hours rather than one and one-half hours to make an
eligibility determination, and two hours rather than one-third hour to
complete a COE.
Discussion: The Secretary appreciates the commenters' concerns.
However, for the most part, the estimated $4.5 million of
``additional'' costs of information collection under this regulation
are not new. Rather, these costs and associated information burden are
``additional'' only in that they would now be attributable to these
specific MEP regulations instead of the requirements of the statute and
applicable sections of EDGAR.
We estimate that SEAs and their local operating agencies (LOAs)
[see definition in section 1309(1) of ESEA] have historically expended
approximately these amounts implementing various eligibility
determination activities under the general authority of the statute and
the
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general requirements for documentation and program monitoring that are
in 34 CFR 76.731 (section 76.31 of the Education Department General
Administrative Regulations (EDGAR)). For example, those provisions have
always required SEAs and their LOAs to document the basis for
determining that a child meets the MEP eligibility requirements,
whether on a COE or in another written record. They also have required
SEAs to review COEs in terms of content and completeness, and ensure
training and oversight of staff conducting identification and
recruitment. As we explained in the information collection package
associated with these final regulations that the Department submitted
to OMB [1810-0662], the annual total cost to collect, review and update
COEs--now to be required by Sec. 200.89(c), but responsibilities that
SEAs and their LOAs already have--accounts for over 60 percent of the
estimated ``additional'' $4.5 million annual cost.
In addition, the cost and burden-hour estimates identified in the
preamble to the NPRM and the associated information collection package
represent an average across all States. The Secretary expects that
States with smaller MEP allocations will expend considerably fewer
hours and considerably less program funds in implementing these
regulations than the averages referred to in the preamble to the NPRM
in and the information collection package. Of course, conversely,
States with large MEP allocations will likely expend somewhat greater
amounts of effort and program funds than the averages, but they also
receive proportionally more annual MEP funding.
Finally, with regard to the cost of validating the temporary nature
of work that otherwise appears to be constant and year-round, the
Secretary continues to believe that such validation can be accomplished
at little or no additional expense or burden as part of the process
that SEAs now conduct to annually update prior eligibility and
continued residency of migrant children. However, as discussed
elsewhere in these final regulations, the Secretary is simplifying this
requirement.
The Secretary continues to believe, based on both the expertise of
Departmental staff with prior State-level experience and discussions
with State MEP staff, that the Department's cost estimates for re-
interviews, determining eligibility, and updating COEs represent a
reasonable estimate of the average time needed to carry out these
activities. However, we note that the public will have another
opportunity to comment on the burden as estimated in the OMB
information package [1810-0662] before the information requirements of
the final regulation become effective. The Secretary will take into
consideration any other comments received from the public on these
issues.
Changes: None.
Section 200.81 Program definitions.
Section 200.81(a) and (b)--Agricultural work and Fishing work.
Comments: Two commenters indicated that they had no substantive
concerns with the proposed changes to these definitions. However, other
commenters expressed concern that the proposed changes would
unnecessarily restrict MEP eligibility or create problems in
identifying exactly which workers perform temporary or seasonal
agricultural or fishing work.
As a point of reference, current regulations (34 CFR 200.81(a)(1))
define an agricultural activity to include ``[a]ny activity directly
related to the * * * processing of crops, dairy products, poultry or
livestock for initial commercial sale or personal subsistence.'' The
current definition of a fishing activity in 34 CFR 200.81(b) contains a
similar phrase. Aside from proposing to change the term ``activity'' to
``work'' in each definition so as to conform to the terms used in the
statutory definition of migratory child, we proposed to revise the
phrase ``processing * * * for initial commercial sale'' in both
definitions to state simply ``for initial processing.'' We also
proposed to eliminate the phrase ``directly related to'' in both
definitions.
With respect to these proposed changes, several commenters stated
that it would be difficult to determine when ``initial processing''
ends, i.e., what particular phases or types of agricultural or fish
processing work would be considered ``initial processing.'' One
commenter asked whether planting or clearing a farm field might be
considered ``initial processing.'' Some commenters suggested that the
final regulations define the term ``initial processing;'' one of these
commenters suggested that the term cover multiple stages of activity,
perhaps up through the point of initial commercial sale either because
it will be difficult to decide when ``initial processing'' ends, or
because there may be processes constituting refinement of the raw
product that occur after ``initial processing'' that should still
reasonably be considered a qualifying activity. Other commenters
recommended that before adopting final regulations, the Secretary
further study the various processing industries to identify which
activities can reasonably be considered ``initial processing.''
Another commenter asked that we retain the language, ``any activity
directly related to,'' that is in the current definitions because it
helps a State distinguish between workers who are handling the crops
and, therefore, would be eligible for the MEP, and the crew chiefs,
mechanics, and other workers (e.g., inventory clerks) who might be
employed on a farm but would not be eligible. Another commenter stated
that we should retain the language ``initial commercial sale'' because
it establishes a point after which work is no longer qualifying for
purposes of the MEP.
With regard to our proposal to include in the definition of fishing
work a statement that this work ``consists of work generally performed
for wages or in rare cases personal subsistence,'' two commenters
recommended that we remove the phrase ``in rare cases'' because some
States have substantial populations that fish for subsistence purposes
rather than fish for wages.
Finally, another commenter recommended including the hunting or
harvesting of whales, walruses, and seals in the definition of fishing
work because these activities are conducted for personal subsistence.
Discussion: We proposed to remove the phrases ``an activity
directly related to'' and ``initial commercial sale'' that are in the
current definitions because we found that these phrases were vague,
difficult to apply, and applied differently in different States. We
believe that referring to ``initial processing,'' which as stated in
the NPRM [72 FR 25230] involves working with ``raw products,'' will
enable State and local MEP personnel to identify more precisely the
particular (and more limited) types of work, especially processing
work, that can reasonably be considered agricultural or fishing work
for purposes of establishing eligibility under the MEP.
We do not agree that the regulations should define the term
``initial processing'' more specifically. We think that States may find
it more helpful for the Department to address in non-regulatory
guidance how this term applies in specific circumstances. This approach
will provide SEAs with greater flexibility to consider particular
situations in different processing industries--each of which has
different sets of jobs that can reasonably be considered ``initial
processing'' and different points in the processing cycle where
``initial processing'' (i.e., of a raw product into a more refined
product) might reasonably be determined to end.
[[Page 44105]]
With respect to the last sentence of the definitions of both
agricultural work and fishing work that, as proposed, provided that the
work would be performed ``generally for wages'' or ``in rare cases
personal subsistence,'' the Secretary believes that migratory work for
purposes of personal subsistence is, in general, a rare occurrence
nationally and that most of the work is performed for wages. However,
the Secretary agrees to remove the phrases ``generally'' and ``in rare
cases'' to avoid any further confusion.
Finally, the Secretary does not agree that the hunting or
harvesting of whales, walruses, or seals should be included in the
definition of fishing work as the commenter suggested. The ESEA
provides that eligibility under the MEP depends on work in agriculture
or fishing. While the Secretary recognizes that whales, walruses, or
seals are harvested for personal subsistence, these animals are not
fish, and catching or processing them cannot be considered to be
fishing work. Moreover, excluding the catching or processing of these
animals from eligible agricultural or fishing work is consistent with
the Department's longstanding policy that hunting of deer, moose, or
elk or their processing into venison is not an agricultural activity
and so, likewise, cannot support a child's eligibility under the MEP.
Changes: The definitions of agricultural work in Sec. 200.81(a)
and fishing work in Sec. 200.81(b) have been revised to remove the
language ``generally'' and ``in rare cases'' from the last sentence of
the definition.
Section 200.81(c) In order to obtain.
Comments: We received a number of comments about our proposed
definition of in order to obtain. This term is used in section 1309(2)
of the ESEA, which defines a migratory child as a child who is, or
whose parent or spouse is, a migratory agricultural worker, including a
migratory dairy worker, or a migratory fisher, and who in the preceding
36 months, has moved from one school district to another ``in order to
obtain'' temporary or seasonal employment in agricultural or fishing
work.
Believing that the statutory phrase ``in order to obtain'' means
that MEP eligibility hinges on making a move for the purpose of seeking
or obtaining this work, yet acknowledging that workers may move to a
particular location for a number of reasons, the Secretary proposed in
the NPRM to define the phrase ``in order to obtain'' more flexibly than
in our current non-regulatory guidance. Specifically, while the current
non-regulatory guidance speaks of a worker's ``primary purpose'' being
to obtain temporary or seasonal employment in agricultural or fishing
work, we proposed that in order to obtain mean that obtaining this work
might be one of several purposes for the worker's move.
Several of the commenters asserted that the proposed definition was
inconsistent with legislative intent as well as language contained in
earlier Departmental non-regulatory guidance, which provided, with a
number of exceptions, that a move qualified if the worker had obtained
the work ``as a result of the move.'' These commenters asserted that
the Department's rationale for proposing this change was incorrect, and
that Congress included the phrase ``in order to obtain'' in the
definition of a migratory child only to clarify that a family who moves
to obtain qualifying work but is unable to obtain such work may still
be eligible for the MEP.
Other commenters stated that the proposed definition would unduly
complicate program eligibility determinations and, therefore, the
definition was impractical and unreasonable. Some commenters suggested
that the Department's interpretation would require recruiters to
interrogate families in order to probe their intent for making a move,
which in turn would so alienate families that they would choose not to
participate in the program--causing eligible children to go without MEP
services.
Commenters also noted that permitting eligibility only if parents
assert that the purpose of their move was to obtain qualifying work is
problematic. They noted that workers often: may move for several
reasons; may lack the education or language ability to explain the
intent of a move; may be unwilling to disclose their intent; and may
give different reasons for the same move depending on which family
member is asked.
Several of the commenters recommended that the Department's final
regulations provide that a child is eligible for the MEP if a family
simply moves across school district lines, obtains or seeks temporary
or seasonal employment in agricultural or fishing work in the new
district, and meets all other eligibility criteria. These commenters
stressed that the family should not have to clearly articulate or
demonstrate that one of the purposes of the move was to seek or obtain
seasonal or temporary employment in agricultural or fishing work.
Other commenters recommended that the regulations be modified to
provide that families who move with the intent of obtaining either non-
qualifying work or any work, but who subsequently obtain temporary or
seasonal employment in agricultural or fishing work, should be eligible
for MEP services.
Discussion: The Secretary continues to believe, as expressed in the
NPRM [72 FR 25231], that the statutory definition of a migratory child
in section 1309(2) of the ESEA requires that MEP eligibility be based
on a worker's move from one school district to another for the purpose
of obtaining temporary or seasonal employment in agricultural or
fishing work. The statutory definition applies to each child eligible
for the MEP. While we have endeavored to do so, we simply are unable to
read the phrase that a worker moved ``in order to obtain'' temporary or
seasonal employment in agricultural or fishing work in such a way as
those commenters, who wish to eliminate the need for the move to be
made at least in part for a qualifying purpose or intent to move, would
have us do. The statutory phrase ``in order to obtain'' can only mean
purpose or intent, and the Department has no authority to interpret the
statute otherwise. Moreover, we are aware of no legislative history
that reveals that Congress intended the definition of a migratory child
to mean something other than that the worker move ``in order to
obtain,'' i.e., with a purpose or intent of obtaining, after the move,
temporary or seasonal employment in agricultural or fishing work.
Thus, we are unable to construe the phrase ``in order to obtain''
to apply only to workers who move and who only then look for or find
temporary or seasonal employment in agriculture or fishing work.
Similarly, we are unable to construe the phrase and its underlying
concept of intent to apply only to those workers who move to seek but,
thereafter, do not find temporary or seasonal employment in
agricultural or fishing work.
However, the Secretary is satisfied that the regulations can be
modified, consistent with the statutory language, to address and
accommodate what we understand to be the commenters' principal
objections and objectives.
The Secretary recognizes the very real challenges SEAs face in
determining and documenting, after the fact, whether or not each
individual worker has moved in order to obtain temporary or seasonal
employment in agricultural or fishing work. Any number of factors,
including a family's poverty, the inability to adequately articulate
the English language, a desire for privacy, a desire for children to
receive the supplemental services the MEP may
[[Page 44106]]
offer, or a need for employment of any kind even if realistically the
worker is likely only to obtain temporary or seasonal employment in
agricultural or fishing work, can significantly impair a recruiter's
ability to discern through an interview whether or not a particular
worker has moved ``in order to obtain'' work that can establish
eligibility under the statute.
These final regulations include within the definition of in order
to obtain not only (1) the provision that a worker who has moved (now
for economic necessity) in order to obtain qualifying work if one of
the worker's purposes in making a move was to obtain this work, but
also (2) a provision that a worker who states that a purpose of the
move was to seek any type of employment, i.e., the worker who has moved
with no specific intent to find work in a particular job, but who finds
qualifying work soon after the move, has moved ``in order to obtain''
qualifying employment. In making this change, we have considered the
public comments, and drawn on prior discussions with MEP practitioners
and knowledge we have gained reviewing audit findings regarding efforts
to confirm MEP eligibility. We believe it is common knowledge that many
migrant workers would accept a permanent job if they could find one,
and state the same in general terms when interviewed to determine their
children's eligibility for the MEP. Often, however, these same workers
are unable, after a move, to obtain any employment other than temporary
or seasonal employment in agricultural or fishing work and, therefore,
accept such qualifying work. Indeed, the fact that these individuals
find temporary or seasonal employment in agricultural or fishing work
soon after they move can often be an indication of their intent in
making a move.
The fact that these individuals may not express a clear intent to
move and obtain qualifying work creates a tension with the statutory
requirement that a worker must move ``in order to obtain'' such work.
It also creates very evident costs and anxieties on the part of SEA and
LOA officials and staff related to how to correctly determine and fully
document that a worker meets the MEP's current definition of a
migratory worker. In those situations where a worker's intent is not
clearly expressed, the Department is satisfied that an SEA may infer
that individuals who, for example, express only a generalized intent to
have moved ``for work'' or ``to obtain work,'' or would ``take any
job,'' or without any specificity ``hope to find a permanent job'' have
in effect expressed that one of the purposes of their move is to obtain
temporary or seasonal employment in agricultural or fishing work. Of
course, if an individual expresses a specific intent to obtain only a
job in work that does not qualify under the MEP, a State could not
determine that this individual moved in order to obtain the requisite
qualifying work.
Changes: The Secretary has revised the definition of in order to
obtain to provide that in circumstances in which a worker expresses an
intent to have moved for any type of employment, as opposed to a
specific intent to obtain only non-qualifying employment, an SEA may
deem that one of the purposes of the individual's move was to obtain
qualifying employment if the worker obtains such work soon after the
move.
Comment: Two commenters expressed concern that the second sentence
of the proposed definition of in order to obtain could be read as
preventing those who do not have an offer or potential offer of
employment in temporary or seasonal employment in agricultural or
fishing work prior to moving from being eligible for the MEP. This
sentence, as proposed, stated:
``A worker has not moved in order to obtain temporary employment
or seasonal employment in agricultural work or fishing work if the
worker would have changed residence even if temporary employment or
seasonal employment in agricultural work or fishing work were
unavailable.''
Another commenter expressed concern that the proposed definition
could be read in exactly the opposite way to exclude individuals who
move knowing that they have a job, since they are not moving in order
to seek or obtain work. This commenter was also concerned that the
definition might exclude individuals who moved without knowing that the
temporary or seasonal agricultural or fishing work they traditionally
performed in a location was unavailable because of unusual
circumstances such as a flood or a drought.
Discussion: The language of the proposed definition was not meant
to restrict the eligibility of families migrating in any of the three
scenarios presented by the commenters. However, to avoid any further
confusion, and to promote program integrity, the Secretary has revised
the definition to clarify that in the case where a worker does not
secure qualifying work soon after a move, more information than just a
statement by the worker is needed to confirm that the worker moved in
order to obtain that qualifying work. Such additional information would
be--either a prior history of moving to obtain qualifying work or,
especially for those who never before migrated and so have no work
history, some other credible evidence that the worker actively sought
the qualifying work soon after the move (e.g., a work application at
various local farms or processors; a farmer's affirmation that the
worker applied for work but none was available; newspaper clippings
documenting a recent drought in the area).
Changes: The Secretary has revised the definition of in order to
obtain to clarify that--
(1) If a worker states that a purpose of the move was to seek any
type of employment, i.e., the worker moved without a specific intent to
find work in a particular job, the worker is deemed to have moved with
a purpose of obtaining qualifying work if the worker obtains qualifying
work soon after the move, but that--
(2) A worker who did not obtain qualifying work soon after a move
may be considered to have moved in order to obtain qualifying work only
if the worker states that at least one purpose of the move was
specifically to seek this work, and (a) the worker is found to have a
prior history of moves to obtain qualifying work, or (b) there is other
credible evidence that the worker actively sought qualifying work soon
after the move but, for reasons beyond the worker's control, the work
was not available.
Section 200.81(d) Migratory agricultural worker.
Comments: Several commenters expressed concern that the proposed
removal of the phrase ``including dairy work'' from the definition of a
migratory agricultural worker would lessen the acceptance of such work
as an appropriate migratory activity even though the definition of
agricultural work refers to ``the production or initial processing of *
* * dairy products [emphasis added].'' These commenters asked that the
Secretary not remove this phrase.
Discussion: The proposed removal of the reference to dairy work
from the definition of migratory agricultural worker was purely
editorial given that the proposed new definition of agricultural work
clearly includes the production and processing of dairy products.
However, upon further consideration of the comments, the Secretary
agrees to make the change requested by the commenter.
Changes: We have modified the definition of migratory agricultural
worker to include a reference to ``dairy work.''
Section 200.81(e) Migratory child.
Comments: Several commenters expressed support for the proposed
definition of a migratory child, noting
[[Page 44107]]
that it would be helpful in clarifying that an emancipated youth who
moves in his or her own right as a migratory agricultural worker or a
migratory fisher would meet the definition. One commenter stated that
additional guidance would be necessary regarding how to document
eligibility for these children who move on their own to seek or obtain
temporary or seasonal agricultural or fishing work.
Two commenters asked that we clarify our statement in the preamble
of the NPRM [72 FR 25231] that a migratory child includes both a child
who accompanied a migratory worker and a child who has joined a
migratory worker in a reasonable period of time. The commenters
recommended that the Secretary provide a definition of ``a reasonable
period of time.'' With respect to a child who joins a worker after the
worker has moved, one commenter recommended that we revise the
definition to clarify that this type of ``to join'' move includes a
move where children move ahead of the parent--e.g., when a worker
secures work in a new town that does not begin immediately but sends
the child first to live with family or friends in the new town and so
start school there without any educational disruption.
Finally, another commenter suggested that we revise the definition
to specify that a migratory child is ``a child or youth between * * * 3
and 21 years of age.''
Discussion: The Secretary does not agree that it is necessary or
desirable to (1) define in regulations how close in time to the
parent's move a child's move must be in order to permit the child to
have moved to join the migratory worker, or (2) address specific fact
situations, such as when a move is made by a child in advance of a move
made by the parent. These issues can be better and more fully addressed
in non-regulatory guidance. Revising the definition to specify the age
range of an eligible migratory child as between 3 and 21 is also not
needed. First, the upper age limit of any ``child'' who would be served
by the MEP and any other of the Title I programs is already established
in the definition of child in the Title I regulations in 34 CFR
200.103(a). Moreover, the age range of 3 through 21 only applies to the
migratory children counted and reported by the SEAs for purposes of
determining the MEP State grant allocations using the formula under
section 1303 of ESEA. Consistent with their comprehensive needs
assessment and service delivery plan (see section 1306(a) of the ESEA
and Sec. 200.83), as well as Sec. 200.103 (which allows services to
preschool children) and sections 1115(b)(1) and 1304(c)(2) of the ESEA
(which allow services to children below school-age), SEAs may provide
eligible migrant children below the age of three with MEP services.
Changes: None.
Section 200.81(f) Migratory fisher.
Comments: One commenter expressed concern that the proposed
definition of a migratory fisher did not address several specific fact
situations, such as when an individual involved in fishing crosses
school district lines but does not leave the fishing boat, or when an
individual makes a number of moves of short duration during the fishing
season.
Discussion: The Secretary does not believe it is desirable or
possible to have the regulations address specific fact patterns
regarding migratory fishing, such as those the commenter raised. The
issues raised by this commenter can be better and more fully addressed
in non-regulatory guidance. The Department intends to issue such
guidance following the issuance of these final regulations.
Changes: None.
Section 200.81(g) Move or Moved.
Comments: We received a number of comments on the proposed
definition of move or moved. One commenter suggested that we delete the
definition because it would not consider workers who move and return to
previously held employment to have made a move for purposes of the MEP.
Several commenters generally agreed that travel for vacation,
holidays, or other personal reasons unrelated to obtaining work should
not be considered moves for purposes of the MEP. Some commenters,
however, expressed concern about the meaning of the terms ``vacation''
and ``holiday,'' noting that these terms could be understood
differently by migratory families and MEP administrators due to
cultural differences. A number of commenters also expressed concern
that the meaning of the phrase ``during or after'' a vacation or
holiday was unclear and confusing. These commenters asked whether the
use of the word ``during'' should be read to exclude all travel that
occurs on or overlaps either a specific holiday such as Christmas, or
that occurs during a scheduled school holiday or the summer vacation
from school. Commenters noted that reading the definition in this
manner could penalize families who wait for breaks in schooling to move
so as not to cause their children to experience educational
interruption. The commenters stated that using this definition as
proposed could create a perverse incentive for families to make moves
during the school year in order to continue to be eligible for the MEP.
Commenters also said that they thought the word ``after'' in the
phrase ``during or after a vacation or holiday'' was ambiguous. They
asked if moving after a vacation or holiday meant that any move by a
family ``after'' a vacation would not be considered a move for purposes
of the MEP, or how long a period after a vacation or holiday must pass
before a family's next move to seek or obtain temporary or seasonal
agricultural or fishing work would be considered a move for purposes of
the MEP. One commenter expressed the opinion that the time at which a
move occurs is irrelevant so long as the move meets the basic
conditions in the statute. Various commenters noted that some migrant
families move for work during a school vacation period, and some
suggested revising the definition either to delete the phrase ``during
or after a vacation or holiday'' entirely or to clarify what we mean by
the phrase. In that regard, two commenters suggested that we consider
the fact that in some cultures travel of more than 30 days, without
pay, and with a clear break in employment would not be considered a
vacation.
Several commenters noted that the proposed definition of move or
moved was inconsistent with the proposed definition of in order to
obtain. They commented that the proposed definition of move or moved
did not allow travel for certain specific reasons--i.e., vacations or
holidays, or any personal reasons unrelated to seeking or obtaining
temporary or seasonal employment in agricultural or fishing work--while
the proposed definition of in order to obtain would more generally have
allowed a move to be made for multiple purposes so long as one of the
purposes was to seek or obtain temporary or seasonal employment in
agricultural or fishing work. The commenters expressed concern that the
proposed definition of move or moved could prevent a family from
qualifying for the MEP if it moved both to seek or obtain temporary or
seasonal employment in agricultural or fishing work and for another
personal reason. One commenter suggested revising the definition to
clarify that moves that occur only as a result of a vacation, holiday
or other personal reasons are not considered to be moves for purposes
of the MEP even if temporary or seasonal employment in agricultural or
fishing work is sought or obtained.
Finally, two commenters asked that we clarify the meaning of the
term ``residence'' and the phrase a ``change from one residence to
another
[[Page 44108]]
residence'' in the proposed definition. They variously recommended that
the Department clarify whether boats, vehicles, tents, trailers, or
relatives' homes would be considered residences under the definition.
Given these considerations, a commenter suggested changing the term
``residence'' to ``location.''
Discussion: The statutory definition of migratory child in section
1309(2) of the ESEA, as in all similar definitions contained in prior
authorizations of the MEP, focuses on the need for a worker to move in
order to obtain certain kinds of employment. Yet, recent audit findings
\1\ have highlighted situations in which children were found eligible
for the program based on moves, such as those made during periods of
school vacations, that a family makes in order to return to the
children's regular school community. Given the desirability of
clarifying when a move of this kind can qualify a child for MEP
eligibility and when it cannot, the proposed regulations were designed
to identify more clearly those situations in which a family's move
would not be sufficient to establish MEP eligibility.
---------------------------------------------------------------------------
\1\ See, e.g., the Department's Office of Inspector General
audit of the California MEP, report No. ED OIG/A05G0032.
---------------------------------------------------------------------------
In reviewing the comments, the Secretary agrees that the proposed
definition was inconsistent with the definition of in order to obtain.
To address the concerns raised by the commenters, we are revising the
definition of move or moved in the final regulations to provide that
the change must be from one residence to another residence that occurs
due to economic necessity. This change fits the purposes of the MEP and
clarifies that for the MEP, a move that is not made due to economic
necessity is not a ``move'' for purposes of MEP eligibility. With this
change, it is not necessary to address in the regulations the
particularities of moves that were made for vacation, holiday, or
personal reasons unrelated to the family's economic need. This change
also eliminates the inconsistency between this definition and the
definition of in order to obtain.
The Secretary agrees it will be useful to provide clarification
about what constitutes a residence, as well as what constitutes
economic necessity. These clarifications-- as well as others, such as
when and how to recognize a move that constitutes a true vacation
(e.g., to/from a resort, visits to family and friends) and thus does
not involve economic necessity--will also be provided in non-regulatory
guidance following issuance of the final regulations.
Changes: The Secretary has revised the definition of move or moved
to provide that, for purposes of establishing eligibility under the
MEP, a move must be a change from one residence to another residence
that occurs due to economic necessity.
Section 200.81(h) Personal subsistence.
Comments: Several commenters supported the proposed definition of
personal subsistence. Other commenters expressed several concerns. One
commenter said that the phrase ``in order to survive'' is somewhat
subjective and may set a different standard than is required for
``principal means of livelihood.'' Another commenter asked whether the
definition requires a differentiation between a worker and grower, and
a farmer or consumer, and whether a person who works land he or she
leases would be covered under the definition. Two of the commenters
recommended either removing the definition of personal subsistence or
changing the phrase ``in order to survive'' to ``as an important part
of personal consumption.''
Discussion: The Secretary agrees that the language of the proposed
definition did not adequately describe the concept of personal
subsistence, and we have revised the definition to provide a better
description. However, in making the revisions, the Secretary does not
agree that the differences between worker, grower, farmer, consumer or
lease-holder are relevant to, or need to be specifically addressed in,
this definition. We believe that these differences are clear in the
definitions of agricultural work and fishing work, which specifically
provide that the work must be performed only for wages or personal
subsistence.
Changes: We have revised the definition of personal subsistence to
provide that the worker and his or her family, as a matter of economic
necessity, consume, as a substantial portion of their food intake, the
crops, dairy products, or livestock they produce or the fish they
catch.
Section 200.81(i) Principal means of livelihood.
Comments: Several commenters recommended that we eliminate the
definition of principal means of livelihood and remove the term from
the definitions of migratory agricultural worker and migratory fisher.
(Those definitions had provided that the temporary or seasonal
employment in agricultural work or fishing work a migratory worker
obtains must be a ``principal means of livelihood''--i.e., that it must
play an important part in providing a living for the worker and his or
her family.) Three commenters questioned the legal basis for this
regulatory requirement. Several commenters were concerned that
requiring the qualifying work to be a principal means of livelihood
might be interpreted in some places as requiring an income or means
test for determining MEP eligibility. Another commenter suggested that
the definition is unnecessary because it is clear most migratory
families live in extreme poverty, and because the questions some
recruiters may ask to determine principal means of livelihood can be
viewed by the migratory families as offensive and intrusive and can
lead to refusals to participate in the program.
Discussion: The proposed definition of principal means of
livelihood is in the current regulations and we did not propose to
modify it in the NPRM. As discussed at length in the preamble to the
final regulations for the MEP published in the Federal Register on July
3, 1995 [60 FR 34826], the Department established the principal means
of livelihood requirement to ensure that, consistent with congressional
purpose, the MEP focuses on children who have a significant economic
tie to migratory agricultural or fishing work. This said, upon
consideration of the comments, the Secretary agrees that, with the
other changes being made to these regulations, the principal means of
livelihood requirement is no longer needed. The Secretary believes that
the other changes, which clarify that a migratory agricultural worker
or a migratory fisher is a person who moves due to economic necessity
in order to obtain temporary or seasonal employment in agricultural or
fishing work, will satisfactorily address the purpose of the principal
means of livelihood requirement.
Changes: The definition of principal means of livelihood in
proposed Sec. 200.81(i) has been deleted and the term has been removed
from the definitions of migratory agricultural worker and migratory
fisher.
Section 200.81(i) Qualifying work.
Comments: None.
Discussion: As revised, the definition of the phrase in order to
obtain would be very cumbersome without a term that could be used to
abbreviate the phrase ``temporary employment or seasonal employment in
agricultural work or fishing work.'' We believe the public generally
understands this longer phrase to mean ``qualifying work,'' and so we
are including a new definition of this term in these final regulations.
[[Page 44109]]
Change: A new definition of qualifying work has been added in new
Sec. 200.81(i) that provides that such work means temporary employment
or seasonal employment in agricultural work or fishing work.
Section 200.81(j) Seasonal employment.
Comments: Two commenters supported our proposed definition of
seasonal employment. However, several others expressed concern that the
definition was too narrow because it indicated that the employment is
dependent on the cycles of nature due only to the specific
meteorological or climactic conditions. One commenter suggested that
this definition did not account for work that is seasonal in nature due
to choices made by the employers or the workforce. Three other
commenters expressed concern that the emphasis on ``specific
meteorological or climatic conditions'' was too limited because some
crops, such as mushrooms, are grown indoors and, therefore, would not
be affected by meteorological or climatic conditions. Commenters also
noted that other crops, such as citrus fruit and other crops grown in
warmer climates such as Florida and California, have to be harvested
because of their specific growth cycle rather than due to
meteorological or climatic conditions. Another commenter noted that
Webster's dictionary defines a ``season'' as ``a period of the year
characterized by or associated with a particular activity or
phenomenon.'' Two commenters noted that fern harvesting in Volusia
County, Florida is an example of a seasonal activity that is an
established annual pattern or event that occurs between November and
June not because of weather conditions but because holidays occurring
during that time create a higher demand for ferns.
One commenter recommended that the Secretary either not define the
term or conduct a study of the range of seasonal employment so as to
develop a better definition. Other commenters suggested amending the
definition to include other reasons for seasonal farmwork such as
growth cycles. Another commenter suggested changing the word
``meteorological'' to ``weather.''
Discussion: While disagreeing with some of the commenters examples,
which the Secretary believes are ``temporary'' rather than ``seasonal''
employment, the Secretary agrees with the commenters that the language
of the proposed definition may have been too limited. The Secretary has
revised the definition to reflect the commenters' underlying concerns,
and a definition of seasonal employment used by the Department of Labor
[see 29 CFR Section 500.20(s)(1)], so as to better describe what
constitutes seasonal employment.
Changes: The definition of seasonal employment has been changed to
state that seasonal employment is employment that occurs only during a
certain period of the year because of the cycles of nature and that, by
its nature, may not be continuous or carried on throughout the year.
Section 200.81(k) Temporary employment.
Comments: Many commenters expressed concern about the provision in
Sec. 200.81(k) that an SEA may only deem specific types of employment
to be temporary if it (1) documents through an annual survey that,
given the nature of the work, virtually no workers who perform this
work remain employed more than 12 months even if the work is available
on a year-round basis, and (2) conducts this survey separately for each
employer and job site. Commenters stated that conducting the proposed
annual survey at each job site would be extremely costly and labor-
intensive, particularly on dairy farms, because of the large number of
sites at which States would be required to conduct the survey. Some
commenters suggested that there would be substantial administrative
costs and staff time associated with conducting the annual surveys and
that, because the proposed regulations would not have provided for
additional funds to pay for costs of conducting the surveys, the
proposal would adversely affect the level of MEP services States could
provide to needy children.
Several other commenters observed that the proposed survey
requirement represented an extreme and unwarranted change to existing
Department practice, would be highly burdensome, and would eliminate
many families from being identified or served. Still other commenters
stated that the proposed requirement to conduct annual surveys (by
individual job site) would be impossible to implement because employees
and employers are often unwilling to give an SEA complete and valid
data about turnover rates. One commenter questioned the practicality of
expecting SEAs to conduct valid surveys of each employer and site. Two
commenters noted that at every livestock processing plant in the Nation
there are at least several workers who remain employed year round, and
the commenter expressed concern that no child of a worker in these
plants would be eligible to receive MEP services under the proposed
regulation.
Discussion: While section 1309(2) of the ESEA requires that a
migratory worker move in order to obtain temporary or seasonal
employment in agricultural or fishing work, the law does not define
``temporary'' employment. As explained more fully in response to other
comments, the temporary nature of employment that is sought or obtained
is generally determined either by the worker or the employer. However,
the Department also recognizes that there are other jobs, such as may
exist in processing plants or dairy farms, in which the employment is
constant and year-round but for various reasons workers typically do
not stay long at these jobs.
In consideration of employment in these kinds of jobs, the
Department developed another way SEAs may determine that the employment
an individual seeks or obtains is ``temporary'' for purposes of the
MEP. In particular, the Department's most recent non-regulatory
guidance permits SEAs, for jobs that are constant and year-round, to
determine the work to be temporary on the basis of an ``industrial
survey'' that establishes, from personnel data supplied by employers, a
high turnover rate--at levels specified by the Department--for each job
category.
The Secretary's proposal in the NPRM responded to widespread
dissatisfaction of local, State, and Federal program officials with
this guidance. Much of this dissatisfaction has been due to the great
difficulties, if not impossibility, of State or local MEP staff
obtaining turnover data from employers, and the lack of completeness
and accuracy of the data that employers did provide. The proposed
regulation would not have required employers to provide such data.
Indeed, the preamble to the NPRM [72 FR 25232] clarified the
Secretary's intent that the necessary attrition data could be easily
obtained from workers when SEA or local MEP staff conduct their annual
updates to confirm eligibility and continued residency of eligible
children identified previously--a task they regularly perform in order
to compile accurate SEA and local program child counts and to determine
if new qualifying moves have been made. Thus, the Secretary believes
that the regulations as proposed addressed those pre-existing concerns
and similar concerns raised by the commenters.
Moreover, the Secretary does not believe that there will be
substantial additional costs and data collection burden associated with
the process the regulation permits for validating whether certain types
of year-round work can be considered temporary
[[Page 44110]]
employment. Notwithstanding our use of the word survey in the proposed
definition of temporary employment, we did not intend the validation
process to be a complex and expensive effort that would require SEAs to
gather a large amount of detailed personnel data annually from
employers or workers. Rather, as imperfectly explained in the NPRM [72
FR 25232], we envisioned that this validation process would involve
asking only those workers whose children were determined eligible based
on the seemingly year-round jobs that the State had previously
designated as temporary (or the children themselves if they are the
workers) the following simple question: has the worker remained
employed by the same employer for more than one year.
After further consideration of the comments, however, the Secretary
believes that this definition can be revised to provide greater
flexibility for States and still ensure that program objectives related
to ensuring that workers are legitimately considered to have moved ``in
order to obtain'' a ``temporary'' job are met. Accordingly, we have
revised the definition to provide that instead of having to conduct
annual surveys to document the temporary nature of work that is
seemingly constant and year-round, an SEA now need only document,
within 18 months after the effective date of this regulation and at
least once every three years thereafter, that, given the nature of the
work, of those workers whose children were previously determined to be
eligible based on the State's prior determination of the temporary
nature of such employment (or the children themselves if they are the
workers), virtually no workers remained employed by the same employer
more than 12 months.
We will provide further details about recommended procedures--such
as combining the process to validate that particular types of
employment are temporary with existing eligibility checks and updates,
and whether all or a sample of employers or job sites should be
examined--in non-regulatory guidance.
Change: The Secretary has revised the definition of temporary
employment to clarify how an SEA may determine specific types of
constant and year-round employment to be temporary. The SEA may do so
if it documents, within 18 months after the effective date of this
regulation and at least once every three years thereafter, that, given
the nature of the work, of those workers whose children were previously
determined to be eligible based on the State's prior determination of
the temporary nature of such employment (or the children themselves if
they are the workers), virtually no workers remained employed by the
same employer more than 12 months.
Comments: With respect to States' determination of whether certain
year-round employment would be considered temporary, we asked in the
NPRM for input on whether the terms ``a few months'' and ``virtually no
workers * * * will remain employed more than 12 months'' should
continue to be used for the final regulation, or whether and what
firmer time limits, numbers, or percentages might be used instead.
Several commenters responded to this question by recommending that
these terms be removed because, as written, they were too vague, would
create confusion, could provide opportunities for abuse, would be
expensive to implement, and would exclude a large percentage of
children currently considered eligible for the MEP by their States.
Several commenters asked the Department to clarify the meaning of
the term ``virtually no workers.'' One commenter suggested that the
term is not quantifiable, and another indicated that a given percentage
of employees leaving over the course of a year may be more or less
significant given the overall size of the processing plant. Still
another commenter expressed the opinion that, even though the
Department indicated in the preamble to the NPRM that the term was used
to avoid setting arbitrary limits, the term is tantamount to
establishing an arbitrary 100 percent rate.
Several commenters stated that it would be nearly impossible to
classify food processing or dairy-farm work as temporary under the
proposed definition because most processing plants and dairy farms
employ at least a few workers for longer than 12 months. One commenter
noted that the Department's own study of processing \2\ indicates that
poultry processing has turnover rates from 50 percent to over 100
percent.
---------------------------------------------------------------------------
\2\ RTI International: ``Literature Review: Agricultural and
Fish Processing,'' June, 2004. [Prepared for the U.S. Department of
Education].
---------------------------------------------------------------------------
Some commenters recommended either eliminating the proposed
definition entirely and continuing to rely on the procedures outlined
in current non-regulatory guidance, or establishing the non-regulatory
guidance procedures by regulation. In this regard, several commenters
recommended using the provisions of the industrial survey process
contained in the current non-regulatory guidance, which specify a job
as temporary if an employer provides information to the SEA that the
job has greater than a 50 percent annual turnover rate. In the
commmenters' opinions, the industrial survey process described in the
current non-regulatory guidance establishes a clearer and easier method
for determining whether year-round employment is temporary. Two
commenters offered the opinion that a turnover rate of greater than 50
percent was a clear indication of the temporary nature of work. Another
commenter suggested using a turnover rate of 75 to 100 percent.
Discussion: The Secretary appreciates the commenters' responses to
the question in the NPRM. We do not agree, however, that the terms
``virtually all'' and ``a few months''--as used in the definition of
temporary employment--are overly vague or confusing or that they will
result in abuse or excessive costs. While the terms ``virtually all''
and ``a few months'' are neither exact nor precisely quantifiable,
these terms should be read to mean that 100 percent, or nearly 100
percent, of workers with children identified as eligible under the
program stay on the job generally for only a brief period of weeks or
months, and only rarely stay for 12 months. The Secretary does not
believe it is desirable to establish further regulatory limitations
relative to these terms. Rather, as noted in the NPRM [72 FR 25232],
the regulatory language will allow SEAs the flexibility they need to
address situations such as the one raised by several commenters whereby
a few workers in the dairy and food processing industries may remain
employed by the same employer somewhat beyond 12 months. Moreover, by
not requiring that 100 percent of workers no longer be employed after
12 months, the regulation will allow the SEA to exercise some
discretion to determine whether specific job categories can reasonably
be considered temporary employment.
As we have noted previously, the Secretary does not agree that
procedures to determine whether specific types of year-round work are
temporary will be expensive to implement, but we have revised the
language of the definition to give greater flexibility as to how to do
so.
The Secretary also does not agree with the suggestions that
turnover rates of ``greater than 50 percent'' or ``75 to 100 percent''
over a 12- or 18-month time period, as reflected in the Department's
prior guidance for the MEP, are better measures for determining the
temporary nature of work. As explained elsewhere in this preamble, such
turnover rates,
[[Page 44111]]
based on data that employers have provided to the SEAs, are flawed. In
this regard, according to information the Department received during a
2004 meeting with representatives from various processing industries,
it appears that their job turnover rates usually only take into account
movement of workers in or out of a particular job; they do not usually
account for situations in which the particular worker continues to
remain employed by the employer at the same work site in a succession
of jobs and, thus, is actually a permanent employee. Under this
methodology, persons initially hired in jobs considered temporary based
on high reported turnover rates as measured based on this flawed job
turnover rate metric may in fact remain employed by the same employer
for years--a situation indicative of permanent (constant year-round),
not temporary, employment. Thus, continuing to rely on job-specific
turnover rates is inappropriate. Given the flawed nature of the job
turnover rates, the Secretary believes that examining whether persons
hired to perform such jobs that the SEA believes, on some credible
basis (such as market research), to be temporary employment continue to
be employed for more than a year would be a better measure of whether
it is reasonable to continue to identify and serve such workers'
families under the program.
Also, the Secretary notes that allowing the use of a turnover rate
as low as 50 or 75 percent to establish a particular job as temporary
employment would extend program eligibility to a substantial number of
children (i.e., the children of the 25 or 50 percent of workers who
remain employed year-round) who would not meet the definition of
migratory child and therefore should not be considered eligible for the
MEP. The Secretary therefore believes that the turnover rates specified
in the current non-regulatory guidance are too low to establish the
temporary nature of the work for the purpose of extending eligibility
to the children of all workers in these jobs.
Change: None.
Comments: In the preamble to the NPRM [72 FR 25232], we also asked
for input as to whether there are additional regulatory requirements
that would improve the proposed annual survey by improving the quality
and consistency of the data or by providing more effective methods to
collect the data. In response, two commenters recommended that the
definition of temporary employment be qualified by inserting the phrase
``usually lasting no longer than 12 months'' which is consistent with
the definition of temporary employment in the current non-regulatory
guidance. Other commenters proposed that the definition of temporary
employment include jobs that last for more than 12 months if a State
can demonstrate either high turnover rates or a pattern of temporary
work at the work site or by the worker. Two other commenters suggested
that the time period for a job to be considered temporary be extended
to 18 months. These commenters noted that, in some industries such as
dairy, temporary employment can last for longer than 12 months and that
the Department's proposal, consequently, would substantially reduce the
number of eligible migrant children in certain geographic areas.
Discussion: Given that eligibility for the MEP depends on a
worker's move to a new location in order to seek or obtain temporary or
seasonal employment in agricultural or fishing work, the Secretary
believes that the time period in which individuals work in these jobs
should be brief and not reflect employment that is constant and year-
round. While reflecting an approach that is more precise and less
flexible than is contained in the non-regulatory guidance, the
Secretary believes that someone who works for 12 months has year-round
employment, and as such, 12 months represents the outside limit for
distinguishing temporary employment from non-temporary employment. The
Secretary believes this same 12-month limit should be applied to the
validation process for determining whether certain types of employment
available year-round can reasonably be deemed temporary. The Secretary
notes that this requirement on the length of temporary work is
consistent with the Department of Labor's definitions of temporary work
in 29 CFR 500.20 and 20 CFR 655.100 for its migrant and seasonal
farmworker programs.
Given that the Secretary expects temporary employment to usually
last briefly--for a few months--and that temporary employment lasting
as long as 12 months is expected to be a rarity, the Secretary agrees
to add the phrase ``but no longer than 12 months'' to the definition.
However, as explained above, the Secretary cannot agree that employment
that lasts for more than 12 months--e.g., for 18 months--should be
considered temporary, and so also cannot agree that the period should
be extended even if an SEA can demonstrate for this longer period
either high turnover rates or a pattern of temporary work at the work
site or by the worker. Of course, if a worker expresses an intent to
have moved in order to work for a period of a few months (not greater
than one year), the SEA could find the worker to have moved in order to
obtain temporary work on the basis of the worker's purpose in making
the move rather than on the basis of documenting attrition in such
employment.
We turn finally to comments expressing concern about the impact an
absolute 12-month rule would have on children of workers in industries
like the dairy industry, where workers are reported to stay in jobs
somewhat longer than 12 months. While the commenters expressed concern
about the impact of a definition of temporary work that is limited to
12 months, they offer no specific data to corroborate their statements.
The Secretary believes that establishing a 12-month time period is not
only reasonable, but is concerned that, absent establishment of this
time period, SEAs will continue to extend MEP eligibility to
individuals who have moved to a new location with at best only a
marginal purpose of obtaining temporary or seasonal employment. Given
this concern about program integrity, the Secretary declines to accept
the recommendation that the 12-month period be extended to 15 or 18
months.
Change: We are modifying the definition of temporary employment to
clarify that such employment is for a limited period, usually lasting
only a few months, and cannot last longer than 12 months.
Comment: One commenter expressed concern about how the proposed
validation process could be implemented in that, given the
retrospective nature of the proposed annual survey, an SEA would need
to wait a year to determine if a job could be considered temporary and,
by then, the family will have moved away. The commenter suggested that
the process, as proposed, was therefore unworkable.
Discussion: The Secretary recognizes the commenter's concern;
however the final regulation will require documenting the attrition
only of those workers whose children were determined eligible (or the
children themselves if they are workers) based on the workers'
employment in those year-round jobs that the SEA, consistent with these
regulations, had previously designated as temporary on some reasonable
basis. If the SEA tries to question these workers 18 months later, the
Secretary would agree the SEA may infer that those workers who have
moved away and cannot be located are no longer employed at the same
plant. These workers, then, would be deemed
[[Page 44112]]
to be part of the plant's worker attrition for that year and, so, would
help support a determination that employment in that plant was
temporary.
Change: None.
Comments: Several commenters recommended that States not be
required to conduct annual surveys and should instead be allowed to
establish their own methodology and criteria to document the temporary
nature of employment. One commenter noted that States are in a better
position than the Federal government to gauge local industry and
substantiate whether employment is temporary. One of the commenters
suggested that one way that States should be allowed to certify year-
round work as temporary would be through providing additional
information on a supplemental form. Another suggested that we require
States to conduct surveys to gather turnover rates every three years,
as currently recommended in non-regulatory guidance, or permit
recruiters to find work to be temporary based on conversations with
other workers who confirm a high turnover rate. The commenter believed
that these would be more realistic options than requiring the
retrospective annual survey proposed in the NPRM.
Discussion: As stated previously, the Secretary strongly believes
that whether they are implemented once every three years or annually,
the procedures for calculating turnover rates as described in the
Department's current non-regulatory guidance for the MEP are
unacceptably flawed. Therefore, the Secretary declines to make the
specific change suggested by the commenter.
However, the Secretary generally agrees that the final regulations
can provide more flexibility regarding how an SEA may determine and
validate the temporary nature of agricultural or fishing work. In
particular, we are removing from the proposed regulation references to
various examples of types of temporary employment and the suggestions
that these are the only kinds of employment that can be considered
temporary on the basis of a survey. Instead, the final regulations
focus on the use of credible sources of information, including worker
and employer affirmations as well as other reasonable determinations by
the SEA. They also eliminate the references to an annual survey of
employment that might be deemed temporary, notwithstanding that it
appears to be constant and year-round, to be conducted separately for
each employer and job site. Instead, these final regulations require
SEAs to document, within 18 months of the effective date of these
regulations and at least once every three years thereafter, that such
employment can continue to be deemed temporary because virtually no
workers whose children were determined eligible on the basis of such
work deemed temporary (or the children themselves if they are such
workers) remained employed by the same employer for over 12 months.
Change: The Secretary has revised and simplified the definition of
temporary employment by clarifying that: (1) such work is conducted for
a limited time frame--usually only a few months but no longer than 12
months--as stated by the employer or the worker, or as otherwise
determined by the SEA on some reasonable basis; and (2) any work that
is constant and year-round can only be considered temporary if the SEA,
within 18 months after the effective date of this regulation and at
least once every three years thereafter, documents that, given the
nature of the work, of those workers whose children were previously
determined to be eligible based on the State's prior determination of
the temporary nature of such employment (or the children themselves if
they are the workers), virtually no workers remained employed by the
same employer more than 12 months.
Comments: Three commenters requested clarification about the type
of documentation a State would need to provide and the type of tests
that a State would need to conduct to classify year-round employment as
temporary. Commenters requested that the final regulations specify the
content of the survey, the type of survey required, and the dates when
surveys would be conducted.
Discussion: The Secretary appreciates the commenters' detailed and
constructive suggestions but believes that, given the greater
flexibility now afforded by the final regulations, it would be better
to address the commenters' concerns in non-regulatory guidance to be
issued after the final regulations are issued.
Change: None.
Comments: Two commenters suggested that the States' recent
voluntary changes in quality control processes including re-
interviewing, as well as such research as a Departmental study of the
poultry processing industry,\3\ should be sufficient to demonstrate to
the Department that processing is temporary employment.
---------------------------------------------------------------------------
\3\ RTI International, op. cit.
---------------------------------------------------------------------------
Discussion: The Secretary believes that neither the State's recent
quality control improvements nor the research and information the
Department has collected on the processing industries provide an
adequate basis for the Department to conclude that the work that occurs
at each processing plant throughout the Nation is temporary. In fact,
based on discussions with researchers and meat-processing industry
representatives, it is the Department's understanding that the degree
to which a particular work activity in agricultural or fish processing
is temporary or permanent varies greatly from plant to plant because of
differences in how each site carries out the work activity (e.g., with
a greater or lesser degree of mechanization) and the particular working
conditions provided in each plant (e.g., salary, benefits,
opportunities for advancement). Accordingly, the Secretary will require
SEAs to use the validation process described in the final regulations.
Change: None.
Section 200.83 Responsibilities of SEAs to implement projects
through a comprehensive needs assessment and a comprehensive State plan
for service delivery.
Comments: Several commenters addressed our proposal to require that
an SEA include measurable program outcomes tied to the State's
performance targets in its MEP Comprehensive Needs Assessment and
Service Delivery Plan. One commenter stated that, while the proposed
change seemed to assume that MEP services do not have measurable
program outcomes, the proposed language was redundant with statutory
requirements given that all States are required to include migratory
children in the State accountability system. Three of the commenters
stated that they recognize that there should be measurable program
outcomes for MEP services. However, they also noted that the
supplemental nature of the MEP--the fact that it often offers services
for a relatively short period of time (e.g., in a summer program), at a
limited level of engagement (e.g., in a 50-minute tutoring session
three times a week during the regular school day), and through support
services that are educationally related but are not themselves
necessarily instructional--requires that any measurable program
outcomes and performance targets for the MEP be realistic, and should
not require precise quantification of results. These commenters were
concerned that the proposed regulatory provision was overly inclusive
and believed the Department should not overreach in its expectation
that grantees establish quantifiable program goals, outcomes and
targets.
[[Page 44113]]
Discussion: The Secretary recognizes the supplemental nature of the
MEP. As noted in the preamble to the NPRM [72 FR 25233], the proposed
change to Sec. 200.83 simply conforms the regulatory language with the
language in section 1306(a)(1)(D) of the ESEA, which requires that an
SEA's comprehensive plan include both the specific performance targets
it has established for all children (including migratory children) and
its measurable program outcomes relative to those targets for the MEP.
The change eliminates any ambiguity about whether a State must address
measurable program outcomes in the MEP comprehensive plan that may have
resulted from the inadvertent omission of the requirement in the prior
regulations.
Changes: None.
Section 200.89(a) Allocation of funds under the MEP for fiscal year
(FY) 2006 and subsequent years.
Section 200.89(a)(1). Several commenters addressed our proposal in
this section under which the Secretary would adjust, for purposes of
making FY 2006 and subsequent year MEP awards, each SEA's FY 2002 base-
year allocation by applying a defect rate established through a State
re-interviewing process to the State's 2000-2001 base-year child
counts.
Comments: Four commenters questioned whether it was appropriate for
the Department to change, through regulations, the statutory procedure
for calculating the FY 2006 allocations when several States have not
conducted re-interviewing or submitted defect rates to the Secretary.
Discussion: The Secretary appreciates the commenters' concern.
However, this concern is largely addressed by the requirement in Sec.
200.89(b)(1), which requires those few States that have not carried out
a voluntary re-interviewing process and submitted a defect rate to the
Secretary to do so as a condition for their continued receipt of MEP
funds. We also note that currently only three States have not submitted
defect rates, and one of these States, Rhode Island, has indicated it
no longer wishes to operate an MEP because of its small number of
migratory children.
Changes: None.
Comments: Two commenters expressed concern about using the State-
reported defect rates established through the voluntary re-interviewing
process to adjust the 2000-2001 base-year child counts because a
standard process was not employed by all States. Both commenters were
concerned that not all States used independent re-interviewers. One of
these commenters recommended that the Secretary require that every
State use an independent re-interviewer to establish the State's defect
rate. In this regard, the commenter noted that the Department was using
an outside contractor to review the processes States used to develop
their defect rates, and expressed the opinion that this use of a
contractor reflected dissatisfaction by the Department with the defect
rates as generated by disparate procedures. In the commenter's view,
using the existing defect rates, which States developed using imperfect
and disparate procedures, to adjust funding would be inappropriate.
Discussion: As noted in the NPRM [72 FR 25234], the Secretary
recognizes that the State defect rates the Secretary ultimately accepts
will not perfectly correct the 2000-2001 migrant child counts. However,
the Secretary firmly believes that their use will result in the
distribution of FY 2006 and subsequent-year MEP funds in a way that
better reflects the intent of the statutory allocation formula than
would continued use of the original 2000-2001 base-year counts.
As the commenter noted, the Secretary has used an outside
contractor to review the SEA-submitted defect rates and the SEAs'
associated re-interviewing and calculation procedures. However, this
was done in order to obtain independent expert opinion as to whether
each SEA's submitted defect rate was based upon adequate procedures and
sufficient technical rigor.
While it is true that not all SEAs submitting defect rates used
independent re-interviewers, the Secretary does not believe that the
decision not to do so should necessarily invalidate the defect rates
they reported. Due to the voluntary nature of the re-interviewing
initiative, the Secretary does not believe it is reasonable--or
necessary--to require retrospective re-interviewing by all SEAs that
did not use independent re-interviewers provided the Secretary is
satisfied that the process an SEA used met reasonable standards for
technical rigor and gives confidence that the reported defect rate is
itself reasonable.
However, under paragraph (b)(1) of this section, the Department
will require any State with a defect rate the Secretary determines to
be unacceptable, or that used procedures the Secretary determines to be
unacceptable, to conduct another statewide retrospective re-
interviewing process. As the regulations are intended to ensure that
these SEAs do this work in ways that are statistically and
methodologically sound, this process will need to include, as a
required element, the use of independent re-interviewers.
Changes: None.
Comments: Two commenters questioned the appropriateness of
continuing to base FY 2006 and subsequent year allocations on the 2000-
2001 child counts. These commenters expressed concern that doing so
would not appropriately direct MEP funding to States that have
experienced substantial increases in their migratory child populations
over the intervening years. The commenters noted that the estimated ten
percent national average defect rate clearly suggests that non-eligible
children are being served in many States at the expense of eligible
children and that the use of the current formula does not allow the
funds to flow appropriately to eligible children in the commenters'
States. The commenters proposed that the provisions of the statute
requiring allocations after FY 2002 to continue to be based on the
2000-2001 child counts be amended to provide that funds ``follow the
child'' based on use of updated yearly counts of migratory children.
Discussion: The Secretary understands that the continued use of
base-year allocation amounts derived from the States' 2000-2001 migrant
child counts does not reflect the current distribution of migratory
children in the States. However, unless the Secretary knows that a
State would be receiving more MEP funds than it needs (see section
1303(c)(2)(A) of the ESEA), section 1303(a)(2) of the ESEA requires the
continued and exclusive use of the base-year counts for any fiscal year
in which Congress has appropriated MEP funds in an amount less than or
equal to the amount it appropriated for FY 2002. As the commenters
note, eliminating the use of the base-year counts requires a statutory
change. In this regard, the Department has requested that Congress, in
the upcoming ESEA reauthorization, eliminate the requirement to make
the MEP allocations using base-year child counts.
Changes: None.
Comment: One commenter recommended revising the regulations to
permit, as was permitted under the ESEA as reauthorized in 1988 (Pub.
L. 100-297), a State to have up to a five-percent error rate in its
counts of eligible migratory children before the Department could
impose any type of allocation adjustment. The commenter stated that a
zero-percent error rate is unrealistic and that every industry has some
non-zero error rate.
[[Page 44114]]
Discussion: While section 1201(b)(1) of the ESEA as reauthorized by
Public Law 100-297 (the Hawkins Stafford School Improvement Amendments
of 1988) contained a provision for a five-percent error rate in State
eligibility determinations, this provision was removed when Title I,
Part C of the ESEA was subsequently reauthorized by Public Law 103-382
(the Improving America's Schools Act). The provision also is not part
of the current ESEA, and the Department does not have authority to
adopt it by regulation. Such a regulation would also conflict with the
clear intent of the statute that only children who meet the statutory
definition of a migratory child may be identified and served with the
limited funds appropriated for the MEP.
Changes: None.
Comments: While acknowledging that in some situations States made
errors, both intentional and negligent, in determining the eligibility
of students for the MEP, three commenters questioned whether the
Department should be using the term ``defect rate'' to describe the
findings of a State's re-interview process. These commenters suggested
that the term ``disparity rate'' would be more appropriate because the
rates do not in all cases demonstrate clear errors in eligibility but
may simply represent a disparity between written records of eligibility
determinations made several years ago and more recent attempts to
verify the information by new interviews. The commenters noted several
possible procedural and cultural reasons for the disparities, including
the considerable time lag between the initial eligibility
determinations and the re-interviews, a lack of adequate monitoring,
and a lack of clarity in certain eligibility criteria provided by the
Department.
Discussion: The Secretary recognizes and appreciates the concerns
raised by commenters but does not believe that the suggested change
should be made. In the various announcements, guidance documents, and
oral presentations the Department has made and provided to SEA
officials on the re-interview initiative, the Department asked each
State to determine, on the basis of reasonable sampling and re-
interview procedures, its ``defect rate'', i.e., the percentage of
children in a State's re-interview sample that the SEA determined to be
ineligible under its re-interview process. While acknowledging that an
SEA's efforts might be subject to subsequent audit, the Department
specifically left to each SEA the decision to determine when a
disparity in the information received should be reflected in its State
defect rate. The Secretary is confident that the States understood the
meaning of ``defect rate'' when they undertook their efforts and that
the phrase ``defect rate'', as used in the NPRM and these regulations,
is appropriate.
Changes: None.
Section 200.89(a)(2). Four individuals or organizations submitted
comments on Sec. 200.89(a)(2), which would require SEAs to use the
results of the retrospective re-interviewing to conduct a thorough re-
documentation of the eligibility of all children for the MEP (and the
removal of all ineligible children) included in the 2006-2007 MEP child
counts.
Comment: One commenter requested clarification of the term,
``thorough re-documentation.'' The commenter stated his belief that
given the cost of re-interviewing a sample of the State's migrant
children, re-documenting the eligibility of all children in the State's
migrant child count would be very expensive.
Discussion: As discussed in the preamble to the NPRM [72 FR 25234],
the Secretary intended the proposed requirement to conduct ``a thorough
re-documentation'' to mean that, after completing its retrospective re-
interviewing, an SEA would examine its rolls of all currently
identified migratory children and remove from the rolls all children it
judges to be ineligible based on the types of problems identified in
its retrospective re-interviewing as causing defective eligibility
determinations. The Secretary expects that an SEA will be able to
undertake this re-documentation effort, at little additional cost, when
it carries out its annual activities to examine whether children
previously identified as eligible in a prior performance year (and who
would retain eligibility based on a 36-month eligibility period
following a migratory move) still reside in the State and so are still
eligible to be counted and served under the program. The Secretary has
revised the language of this requirement in the final regulation in
order to better explain the process required.
Changes: The Secretary has revised Sec. 200.89(a)(2) to clarify
that in carrying out the re-documentation, an SEA must examine its
rolls of all currently identified migratory children and remove from
the rolls all children it judges to be ineligible based on the types of
problems identified in its statewide retrospective re-interviewing as
causing defective eligibility determinations.
Comment: Another commenter stated that the requirements in proposed
Sec. 200.89(a)(2) are unnecessary, and that they should not apply to
those States with a declining population of migratory children that
have proactively implemented procedures to improve quality control.
Discussion: The Secretary disagrees with the commenter. In order to
demonstrate the integrity of the program statewide and nationally, it
is necessary for all SEAs to carry out the requirements of this section
to ensure the accuracy of the State counts of migrant children and the
correctness of the State eligibility determination of each child. The
fact that an SEA reports a non-zero percent as its defect rate based on
a random sample of children included in its retrospective re-
interviewing implies statistically that the overall population of
identified migratory children in the State will contain approximately
this same percentage of ineligible children. An SEA, therefore, needs
to generalize from its defect rate to estimate the percentage (and
actual number) of ineligible children in its statewide population of
migratory children and, then, based on application of the re-interview
findings regarding the types of problems that caused the defect rate,
search for, locate, identify, and stop serving (and remove from the
rolls of eligible migratory children) all children found to be
ineligible in the overall statewide population of identified migratory
children. For example, finding 20 ineligible children out of a
representative sample of 400 (i.e., 5 percent defect rate) implies
that, out of an overall population of 5,000 identified migratory
children, approximately 250 children (5 percent of 5000 and not just
the 20 identified from the sample) would also be ineligible across the
State. The SEA must, therefore, begin to implement a re-documentation
process to identify and terminate services to all of these ineligible
children.
Changes: None.
Comment: Two commenters questioned the value of the proposed re-
documentation requirement, given the burden and associated costs. One
commenter stated that the requirement might be appropriate for certain
high-risk grantees but not for all States participating in the MEP. The
other commenter stated that the expense would be unnecessary, given the
current level of attention that has already been focused on MEP quality
control issues nationally. One commenter asserted that the annualized
costs associated with data burden that we estimated for conducting re-
documentation were misleading because we had assigned costs to each
State regardless of the size of a State's population of migratory
[[Page 44115]]
children. Both commenters also expressed concern that the costs of a
thorough re-documentation would be very high for their respective
States if meeting the requirement involved the same level of effort
States expended when they conducted their voluntary re-interviewing.
Discussion: The Secretary does not agree that the costs of the re-
documentation will be particularly high because, as noted previously,
the re-documentation can be conducted at the same time that SEAs carry
out their usual processes for updating the eligibility and continued
residency of migratory children identified as eligible in a prior
performance year. The Secretary also strongly believes that this re-
documentation effort is an essential step that must be implemented by
all SEAs in order to ensure the accuracy and integrity of the States'
programs and of the MEP nationally. Such re-documentation is necessary
to ensure that MEP funds are used only to provide services to eligible
migratory children. This is the case since any MEP funds used to serve
ineligible children are not available to serve those who are eligible.
Moreover, the provision of service to ineligible children, when
ultimately discovered by Departmental monitoring or audit, may require
SEAs and LOAs to return funds improperly expended, reductions in future
MEP allocations, and the assessment of penalties and/or damages.
Changes: None.
Comment: One commenter suggested that the re-documentation
requirement is unnecessary because, according to the commenter, it
would be duplicative of current regulatory requirements that already
require annual re-certification of eligibility of each migratory
family.
Discussion: While the ESEA generally requires that SEAs submit
accurate counts of and serve only eligible migratory children, current
Departmental regulations do not require, explicitly or implicitly, that
SEAs re-certify the eligibility of migratory children annually. If an
SEA includes a child in its State child counts based on a prior year's
eligibility determination, the SEA must only confirm that the child has
lived in the State during the reporting period and that the child made
an eligible move not more than 36 months before reporting the child in
the State's counts of migratory children. An SEA may conduct an annual
re-certification as part of its State-established program requirements,
and, in its MEP non-regulatory guidance, the Department has recommended
that SEAs conduct such re-certifications as a voluntary quality control
measure. However, MEP regulations have never required that States
conduct re-certifications.
Changes: None.
Section 200.89(b) Responsibilities of SEAs for re-interviewing to
ensure the eligibility of children under the MEP.
Comment: One commenter objected to the re-interviewing requirements
proposed in Sec. 200.89(b), stating that, in the commenter's opinion,
requiring any further re-interviewing would constitute a waste of
program funds given the amount of funds that have already been expended
on the voluntary retrospective re-interviewing process. The commenter
recommended eliminating the re-interviewing requirements.
Discussion: The Secretary disagrees. The voluntary retrospective
re-interviewing process was valuable in identifying serious
deficiencies in eligibility determinations in a number of States, and
it is necessary, from the point of fairness, to require it in Sec.
200.89(b)(1) of all SEAs that did not participate voluntarily or did
not provide what the Secretary determines to be an acceptable defect
rate. Similarly, it is necessary to require prospective re-interviewing
in Sec. 200.89(b)(2) to ensure a complete system of quality control.
For reasons expressed elsewhere in this notice, the Secretary is
satisfied that the costs associated with re-interviewing are reasonable
and manageable.
Change: None.
Section 200.89(b)(1) Retrospective Re-interviewing. In all, six
individuals or organizations submitted comments on the requirements in
Sec. 200.89(b)(1), in which the Department proposed to establish
certain minimum technical requirements regarding sample selection, re-
interview procedures, and reporting for retrospective re-interviewing.
Comments: Four commenters supported the proposed requirement to
conduct retrospective re-interviewing. One commenter stated that the
proposal was a good idea and would make every State responsible for the
re-interviewing process and its results. Two commenters indicated that
the re-interviewing requirement would not apply to their State because
the State had already conducted re-interviewing under the voluntary re-
interview initiative. Another commenter stated that she had no comments
concerning the requirements unless the Department does not accept the
commenter's State defect rate.
Discussion: While the Secretary appreciates these supportive
comments, they raise a concern that the language in paragraph (b)(1) of
the proposed regulation was not sufficiently clear about which SEAs
would need to conduct retrospective re-interviewing. We note those
requirements here and have revised the language in the regulations to
clarify the requirements.
Under these regulations, retrospective re-interviewing will be
required by: (1) Those few SEAs that do not implement the process
voluntarily prior to the effective date of these final regulations; (2)
any SEA that submitted a defect rate that the Secretary does not
accept; and (3) any SEA implementing it as a corrective action of the
Secretary based on prospective re-interviewing results [Sec.
200.89(b)(2)(vii)] or other quality control checks [Sec.
200.89(d)(7)].
Currently, SEAs in only two States with operating MEPs have not
conducted voluntary re-interviewing and submitted a defect rate to the
Department. These two SEAs will be required to conduct retrospective
re-interviewing once these final regulations have become effective. Of
the remaining SEAs, i.e., those that conducted voluntary re-
interviewing and submitted their defect rates to the Secretary, the
Secretary has been able to determine all but a small number to be
acceptable. After these regulations become effective, the Secretary
will notify those few SEAs that submitted unacceptable defect rates
that, if the matter of their defect rates is not resolved, they, too,
will need to conduct retrospective re-interviewing. Additionally,
retrospective re-interviewing may be required of an SEA in the future
as a corrective action if necessary under Sec. 200.89(b)(2)(vii) or
Sec. 200.89(d)(7).
Change: The Secretary has revised Sec. 200.89(b)(1)(i) to clarify
that, in addition to those SEAs that have not yet conducted
retrospective re-interviewing, any SEA that did so but submitted a
defect rate that is not accepted by the Secretary will also be subject
to the requirement to conduct retrospective re-interviewing. The
revised regulation also now clarifies that the Secretary may require
retrospective re-interviewing as a corrective action in order to
respond to problems identified through the prospective re-interviewing
process (Sec. 200.89(b)(2)(vii)) or through other quality control
checks, including audit and monitoring findings of the Secretary (Sec.
200.89(d)(7)).
Comments: One commenter expressed concern about the sampling
requirements for retrospective re-interviewing. This commenter stated
that the proposed sample size for retrospective re-interviewing would
be similar to the sample size for prospective re-interviewing and that
[[Page 44116]]
this would require each State to expend an additional 8,700 person
hours annually.
Discussion: The commenter has misunderstood the proposed sampling
requirements and the amount of effort needed for both prospective and
retrospective re-interviewing. First, the statement in the preamble to
the NPRM [72 FR 25235] that an estimated 8,700 hours would need to be
expended for prospective re-interviewing refers to the estimated total
hours to be expended nationally across all States participating in the
MEP, not to the effort to be expended by a single State. Second, the
sample size and the estimated data burden for retrospective re-
interviewing are not the same as for prospective re-interviewing.
Rather, both sample size and data burden on staff and migratory
families are greater for retrospective re-interviewing than for
prospective re-interviewing.
As noted more clearly in the OMB information collection package
[1810-0662] and the section of the NPRM entitled Paperwork Reduction
Act of 1995 [72 FR 25238], we estimate that on average only 152 hours
of staff time (and 25 hours of migrant parents' time across an
estimated statewide sample of 50 migratory parents) per State will be
needed to conduct prospective re-interviewing, while an estimated
average of 1,580 staff hours and 150 person hours (across an estimated
average statewide sample of 300 migrant parents) per State will be
needed to conduct retrospective re-interviewing. As we have noted,
however, most SEAs have already conducted their retrospective re-
interviewing process and will not incur this burden. Only those SEAs
that have not conducted retrospective re-interviewing prior to the
effective date of these final regulations, those SEAs that have a
defect rate that the Secretary does not accept, or those under
corrective actions that require retrospective re-interviewing will
still have to meet the retrospective re-interviewing requirements
established by these final regulations.
Changes: None.
Comments: One commenter stated that the costs associated with
hiring independent re-interviewers to conduct retrospective re-
interviewing would be significant and would require States to divert
funds and services away from migrant children. The commenter expressed
the opinion that imposing these costs was inconsistent with the Summary
of Potential Costs and Benefits in the NPRM, in which the Department
stated that the proposed regulations would not add significantly to the
costs of implementing the MEP. The commenter recommended either
providing funds to States to hire independent re-interviewers or
eliminating the requirement for independent re-interviewers except in
cases where the Secretary determines a significant error rate.
Discussion: Consistent with the need for retrospective re-
interviewing to ensure the integrity of a State's MEP, the Secretary
believes that the use of independent re-interviewers is necessary in
conducting retrospective re-interviewing. The Secretary recognizes that
hiring and training interviewers independent of the initial eligibility
determinations will be somewhat more expensive than using existing
program personnel (although existing program personnel may still need
to receive training in the re-interviewing process, and SEA or LEA
staff already on-staff but paid from non-MEP funds (e.g., State/local
audit staff, monitoring staff from other Federal or State programs) may
also be considered independent re-interviewers). However, the Secretary
believes that any extra costs incurred through the use of independent
re-interviewers are an allowable and necessary use of MEP funds and
justified by the need to establish the quality and impartiality of a
State's re-interviewing process. In any case, the retrospective re-
interviewing is only to be conducted in situations where there are
significant questions raised about the accuracy of a State's
eligibility determinations as identified either through its ongoing
quality control processes (including prospective re-interviewing) or
because the State did not conduct a retrospective re-interviewing
process that resulted in a defect rate that the Secretary accepts.
Changes: None.
Comment: One commenter asked that we clarify which year States must
use for the target child count required for retrospective re-
interviewing.
Discussion: The Secretary will determine which year's migrant child
count an SEA must examine in retrospective re-interviewing based on the
reason the SEA is being required to conduct such re-interviewing, i.e.,
if the SEA did not conduct retrospective re-interviewing prior to the
effective date of this final regulation; if a previously submitted
defect rate was found to be unacceptable based on the Department's
review of the State's re-interviewing process; or if the Department
requires it as a corrective action.
Change: None.
Section 200.89(b)(2) Prospective Re-interviewing. In all, 15
individuals or organizations submitted comments on proposed Sec.
200.89(b)(2), which would require annual prospective re-interviewing
and establish certain minimum technical requirements regarding sample
selection, re-interview procedures, reporting, and corrective actions.
Comments: One commenter supported our proposal to require
prospective re-interviewing because it would ensure that all States
actively monitor their eligibility determinations. Two other commenters
indicated that their States were already conducting prospective re-
interviewing on a sample of children annually.
Discussion: The Secretary appreciates the commenters' expressions
of support for the proposal to require prospective re-interviewing.
Changes: None.
Comments: Several commenters expressed concern that the prospective
re-interviewing requirements would be costly and burdensome for States
to implement. In some cases, the commenters based their concerns on
their prior experiences with the Department's voluntary (retrospective)
re-interviewing initiative. In other cases, commenters assumed that the
8,700 hours referred to in the preamble to the NPRM represented the
burden per State, rather than nationally. Several commenters also were
concerned that their States, especially States with small MEP
allocations or those with low MEP base-allocation amounts that have
experienced influxes of migrant children since FY 2002, would not have
sufficient funds to conduct extensive re-interviewing in order to
verify eligibility and still be able both to continue to serve migrant
children and identify and recruit eligible children for MEP services.
Several of the commenters expressed concern about re-interviewing
costs in light of the statement in the preamble to the NPRM [72 FR
25235] that States would need to conduct prospective re-interviews of
100 migrant families annually. These commenters stated that it would be
too burdensome and expensive, and in some cases impossible, for States
with small MEP allocations to conduct this number of re-interviews on
an annual basis. Several commenters asked that the prospective re-
interviewing requirement either be eliminated or somehow modified to
take into account the differences in the amounts of MEP funding that
each State MEP receives. Several commenters suggested increasing each
State's MEP allocation to cover the costs associated with prospective
re-interviewing. One commenter recommended including a specific line
item for this task.
[[Page 44117]]
Discussion: The Secretary does not agree that the prospective re-
interviewing process required in Sec. 200.89(b)(2) will be overly
burdensome. As noted elsewhere in this preamble, as well as in the
preamble to the NPRM [72 FR 25234], the Secretary believes that
prospective re-interviewing constitutes an essential activity in an
overall system of quality control.
In reviewing these comments, however, we believe there were some
misunderstandings regarding the regulatory requirements and associated
burden costs of prospective re-interviewing.
First, commenters appeared to believe that prospective re-
interviewing will be as extensive and difficult as the voluntary
retrospective re-interviewing that most SEAs carried out prior to
issuance of this regulation;
Second, commenters appeared to believe that the burden for
prospective re-interviewing will be an average of approximately 8,700
hours per State, rather than nationally; and
Third, there was a misunderstanding that each SEA would be
required to prospectively re-interview 100 families per year.
With regard to the first concern, the Secretary recognizes that the
voluntary retrospective re-interviewing process that most SEAs
conducted was costly and time-consuming. That was the case because the
retrospective re-interviewing process entailed: (1) Using a statewide
random sample and considerable over-sampling to ensure adequate
replacement for those families that could not be located, so that the
results could be generalized statewide; and (2) conducting re-
interviews after a considerable amount of time had passed between the
initial eligibility determination and the re-interview. Prospective re-
interviewing, however, will not pose the same difficulties. As we
stated in the preamble to the NPRM [72 FR 25235], the sample used for
prospective re-interviewing (unlike the sample used for retrospective
re-interviewing) does not need to be large enough to generalize to the
statewide population of migratory children. Rather, it only needs to be
of sufficient size and scope to serve as an early warning system for
potential eligibility problems. Additionally, SEAs can and should be
conducting their prospective re-interviews relatively soon after the
initial eligibility determination is made.
With regard to the second concern, the Secretary believes the
misunderstanding stems from a statement in the preamble to the NPRM [72
FR 25235]--that the prospective re-interview burden would be less than
8,700 hours annually--that was unclear. The 8,700 hours estimated to be
required to conduct prospective re-interviewing represents the
estimated annual burden in total nationally, not per State. As was
noted more clearly in the section of the NPRM entitled Paperwork
Reduction Act of 1995 [72 FR 25238] and in the OMB information
collection package [1810-0662], we estimate that on average only 152
hours of staff time (and 0.5 hours of time for each of 50 migrant
parents) per State per year would be needed to conduct prospective re-
interviewing.
With regard to the third concern, the Secretary regretfully notes
that the reference to prospective re-interviewing of 100 families in
the preamble was an error. In fact, as included in the OMB information
collection package [1810-0662] and identified in the section of the
preamble to the NPRM entitled Paperwork Reduction Act of 1995 [72 FR
25238], the Department's cost and burden estimates for prospective re-
interviewing are based on the expectation that, on average, only 50
families would be prospectively re-interviewed per State per year.
Accordingly, the language in the preamble to the NPRM should have
provided that States ``on average'' would prospectively re-interview
``on an annual basis * * * no more than 50 families.''
Further, our use of the terms, ``no more than'' and ``on average'',
when taken together, means that we recognize that under some
situations, and especially in the case of States with small numbers of
migrant children and, thus, small MEP allocations, an SEA may be able
to draw meaningful inferences about the quality of recruiters'
eligibility decisions from prospective re-interviews with fewer than 50
families per year and still satisfy the regulatory requirement in Sec.
200.89(b)(2)(ii) to annually sample a ``sufficient number of
eligibility determinations'' randomly on a statewide basis or based on
relevant subgroups. Conversely, an SEA in a State with a relatively
large number of migrant children and, thus, with a relatively large MEP
allocation may find it desirable to re-interview more than 50 families
in order to obtain meaningful inferences about the quality of
eligibility decisions that its recruiters are making. Issues of sample
size will be more fully addressed in non-regulatory guidance on re-
interviewing after the publication of this final regulation.
With regard to the other concerns regarding costs, we estimated in
the OMB information collection package [1810-0662], which the NPRM
invited the public to review and comment upon, that the average cost
per State of the prospective re-interviewing (using the correct average
of 50 families per State) will be about $2,300 annually. Given this
estimate, the Secretary does not believe that any SEA will find its
costs of undertaking prospective re-interviewing to be unmanageable,
and so does not believe that this requirement will result in any
significant reduction of direct services to migrant children. SEAs, of
course, may use their State MEP allocations to pay for the cost of
prospective re-interviewing.
With regard to the recommendations to increase or specifically
reserve funds to help States pay the cost of conducting prospective re-
interviewing, absent a statutory change the Secretary cannot increase a
State's MEP allocation or specifically reserve funds to compensate for
the small amount of MEP funds that each State participating in the MEP
will have to use to pay for prospective re-interviewing. Nor could the
Secretary increase each State's allocation unless the appropriation for
the program increases.
Changes: None.
Comment: Two commenters asked whether the proposed regulations
would require that States conduct two, overlapping prospective re-
interviewing processes--one activity to be conducted by MEP staff every
year and a second activity to be conducted in a given year along with
the first activity, at least every third year, by non-MEP re-
interviewers.
Discussion: The regulations do not require two separate and
overlapping procedures for conducting prospective re-interviewing.
Section 200.89(b)(2) establishes one annual prospective re-interview
process. In conducting the annual prospective re-interview process, the
SEA must use independent re-interviewers, rather than MEP-funded re-
interviewers, to conduct that re-interviewing at least once every three
years. So, for example, if an SEA uses MEP-funded re-interviewers to
conduct the annual prospective re-interviews in years 1 and 2, it must
use independent re-interviewers to conduct that process in year 3. In
order to assist SEAs in implementing these new prospective re-
interviewing regulatory requirements, we will be issuing non-regulatory
guidance regarding recommended re-interviewing processes following
issuance of these final regulations.
Changes: None.
Comment: In response to our request in the NPRM for input on
whether prospective re-interviewing should occur on a less frequent
interval than
[[Page 44118]]
annually, several commenters stated that prospective re-interviewing
should be required less frequently--e.g., either on a biennial basis or
once every three years. One commenter recommended conducting re-
interviewing ``periodically.'' Another commenter suggested annual re-
interviewing is not necessary given the requirements in Sec.
200.89(d), which establishes a number of other quality control
procedures.
Discussion: The Secretary appreciates the commenters' input. After
due consideration of the comments, we have concluded that prospective
re-interviewing may not occur less frequently than annually. A
requirement that prospective re-interviewing be conducted only
periodically would not be sufficiently precise. Requiring that the
process be conducted biennially or even less frequently, rather than
annually, would not be justified in light of the substantial benefit to
program integrity that will accrue from conducting the process
annually. In this regard, we cannot overemphasize that the national re-
interviewing initiative revealed significant problems with eligibility
decisions in many parts of the nation. While we are confident that SEAs
have taken seriously their responsibility to correct the underlying
problems that created this situation, the Secretary believes that
continued vigilance is still needed.
Prospective re-interviewing is meant to identify, based on a review
of a small sample of families with children found eligible for the MEP,
potential problems with eligibility determinations early on--before
they become severe. Hence, conducting prospective re-interviewing less
frequently than annually would mean that SEAs would have less frequent
opportunities to find potential eligibility determination problems,
increasing the risk that an eligibility problem will fester or become
more widespread and more difficult for the SEA to correct.
Changes: None.
Comment: Several commenters stated that they believed Sec.
200.89(b)(2) was overly prescriptive. In particular, three commenters
suggested that face-to-face re-interviews with migrant families are not
necessary and that telephone interviews are sufficient. One of the
commenters suggested that the Secretary modify the language of the
regulation to provide that the SEA determines what constitutes a
reasonable process for conducting prospective re-interviewing.
Discussion: The Secretary does not agree that the provisions in
this section are overly prescriptive. Rather, while the provisions do
establish certain minimum requirements for prospective re-interviewing,
they do so in such a way as to give SEAs considerable flexibility to
establish a process that is reasonable based on State-specific
circumstances, including the State's population of migrant children,
and specific migratory patterns. For example, paragraph (b)(2)(ii),
which describes minimum sampling requirements for prospective re-
interviewing, gives SEAs flexibility as to whether to test on a
statewide basis or within particular categories and risk factors. It
also suggests but does not require absolute use of any or all of
several risk factors that might be used to define the particular
categories on which re-interviewing might be focused in a given year.
Despite the flexibility already offered in the NPRM, the Secretary,
in response to the comments, has revised the language in paragraph
(b)(2)(iii) to provide further flexibility by noting that an
alternative to face-to-face interviewing may be used if face-to-face
interviewing is determined to be impractical, and specifically noting
telephone interviewing is one allowable alternative. This revision
removes the language that was contained in the proposed regulations
that required an SEA to show that extraordinary circumstances made it
impractical to conduct face-to-face interviewing.
Changes: The Secretary has revised paragraph (b)(2)(iii) to provide
that SEAs must use a face-to-face approach to conduct prospective re-
interviews unless circumstances make the face-to-face re-interviews
impractical and necessitate the use of an alternative method such as
telephone re-interviews.
Comment: Several commenters expressed concerns about the sample
size requirements for prospective re-interviewing. One commenter
recommended modifying the regulations to require a smaller sample size
for prospective re-interviewing than the average of 100 families that
the NPRM suggested. Three commenters expressed concerned that the
proposed regulatory language regarding sample size was too imprecise,
and recommended that the Secretary clearly define terms such as
``random sampling'' and ``sufficient sample,'' and establish five
percent or another specific percentage of families that each State must
re-interview prospectively. One commenter asked that we clarify how the
proposed requirement to use ``a statewide random sample with a
confidence interval of 5 percent'' could be applied in a State with a
large migrant population if only 100 families a year are re-
interviewed.
Discussion: With respect to the comment regarding use of an average
of 100 families for the sample size for re-interviewing, we previously
noted that this reference was an error and that the correct sample size
would generally be no more than 50 families, on average.
The Secretary does not agree that the language in paragraph
(b)(2)(ii) is imprecise; we believe this language provides an
appropriate level of detail for a regulation and permits a State some
flexibility depending on specific circumstances. By the term
``sufficient sample,'' we mean a smaller and less precise sample than
the one required for retrospective re-interviewing. We mean the term
``random sample'' to have the meaning generally used in the field of
statistics. This said, we intend to provide further guidance to States
on random sampling, sample sizes, and other aspects of the re-
interviewing requirements in non-regulatory guidance following the
issuance of these final regulations.
The requirement to use a statewide random sample (at a 95 percent
confidence level with a confidence interval of plus or minus five
percent) refers only to the requirements for retrospective re-
interviewing; in contrast, for prospective re-interviewing the SEA need
only select a sample of sufficient size and scope to enable the process
to serve as an adequate early warning system about potential
eligibility problems.
Changes: None.
Comment: Three commenters expressed concern about the costs and
effort needed if independent re-interviewers (i.e., non-MEP personnel)
are required for prospective re-interviewing.
Discussion: As we have discussed previously, we do not believe that
implementing the prospective re-interviewing requirement, including the
provisions for use of independent re-interviewers, will create
significant cost or burden particularly when compared to the benefit of
using independent re-interviewers at least once every three years to
verify the eligibility determinations for the sample selected. Using
independent re-interviewers periodically allows States to avoid even
the appearance of a possible conflict of interest in making decisions
about program eligibility determinations that affect the size of grant
and subgrant amounts and, thus, contributes to ensuring the ongoing
integrity of the MEP. Also, such independent re-interviewers may
already be on staff at an SEA or local site--e.g., monitoring or audit
staff for another program--and so already have their salaries paid.
They would be considered ``independent re-interviewers'' so long as
they do not
[[Page 44119]]
operate or administer the MEP or are not responsible for the initial
eligibility determinations they are reviewing.
Changes: None.
Comment: Three commenters objected to our proposal to require
States to use re-interviewing as the sole or primary method for
ensuring the quality of eligibility determinations. The commenters
recommended that States' primary focus in ensuring quality should be on
providing training and technical assistance to recruiters and other
relevant personnel. The commenters indicated that a verification
process should be undertaken, but not involve annual re-interviewing of
substantial numbers of families. These commenters recommended that
States be required to develop and implement a system of internal
controls, such as testing of recruiters, certification of recruiters'
training, checking recruiters' work and certificates of eligibility
closely, and related activities, in order to ensure that procedures are
appropriate and followed conscientiously. Additionally, the commenters
recommended that we require States to more closely scrutinize
eligibility determinations in geographic areas that experience a change
in demographics, in areas where there are new recruiters, and in areas
where there have been findings of mistakes.
Three commenters stated that the institutionalization of the
prospective re-interviewing process in regulations and requiring the
reporting of a new ``defect rate'' each year would be unwarranted and
detrimental. The commenters argued that if a family is deemed to be
ineligible through the State's other existing quality control
processes, the family should simply be removed from the list of
children to be served. The commenters suggested that, if proper
training and support are in place and the Department conducts
appropriate site visit monitoring, there should be no noticeable or
worrisome problems with the eligibility determination process in the
future. The commenters recommended that the States be required to adopt
a ``verification of eligibility plan'' that would be submitted to the
Secretary for approval.
Discussion: The Secretary is in general agreement with the
commenters. The Secretary agrees that prospective re-interviewing is
not and should not be the sole or primary focus of a State's MEP
quality control process, and that it is important that SEAs examine
eligibility determinations based on specific risk factors and other
criteria. The Secretary believes that this approach is already
reflected in the language in Sec. 200.89(d), which outlines the
minimum components of a State's quality control system, and in Sec.
200.89(b)(2)(ii), which indicates that the sample selected for
prospective re-interviewing may be based on categories associated with
particular risk factors. Additionally, the Secretary agrees that
prospective re-interviewing should not need to involve annual re-
interviewing of ``substantial numbers'' of families--that 50 families
per year would generally be sufficient.
The Secretary does not agree that prospective re-interviewing is
unnecessary or detrimental. As we explained in the NPRM and in this
preamble, conducting prospective re-interviewing is essential, as one
part of an SEA's overall quality control system, for maintaining a high
degree of program integrity in the State and nationally. Conducting
prospective re-interviewing annually is necessary to help promote SEA
vigilance in checking on the accuracy of State MEP eligibility
determinations shortly after they are made, rather than allowing
several years to pass before eligibility problems can be identified and
corrected.
We note that the Department never intended the prospective re-
interviewing process to result in an annual computation of a ``defect
rate.'' Rather, we intended it to serve as a part of an SEA's early
warning system for eligibility problems. In this regard, if an SEA
uncovers eligibility problems through prospective re-interviewing of
the sample of children previously found eligible (or by the other
review processes described in paragraph (d)), the SEA may have
uncovered a problem that is far more pervasive than the ineligibility
of the child or children on which the prospective re-interviewing
focused. Simply removing these children from the rolls of eligible
children as suggested by the commenters, without investigating whether
the problem is broader, would not constitute a sufficient or
responsible response to the findings. Instead, depending on the nature
of the problems identified, the SEA must take corrective action as
called for in paragraphs (b)(2)(vii) and (d)(7), including where
appropriate, more extensive re-interviewing, to examine the extent of
the problem, and then correct it.
Finally, the Secretary declines to adopt the commenters'
recommendation that we require States to develop and submit a
``verification of eligibility plan,'' in place of the prospective re-
interviewing, since requiring the development and submission of such a
plan would impose additional burden on States while not providing
useful information other than a list of promised activities similar to
those we have included in the regulations.
Changes: None.
Section 200.89(c) Responsibilities of SEAs to document the
eligibility of migratory children.
Comments: Ten commenters addressed the proposed provisions in Sec.
200.89(c) establishing requirements for States to follow when
documenting the eligibility of migrant children.
Two commenters supported our proposal to require States to use a
national COE. However, one of these commenters expressed concern
regarding when and how the national COE would be developed and
implemented. One commenter noted that the proposal for use of a
national COE should provide greater consistency of information and
training on completing the documentation.
Several other commenters expressed concerns about the proposal to
require use of a national COE. One commenter noted that each State has
different patterns of work and mobility, and the information necessary
for a determination of eligibility in one State may not be necessary in
another State. Several commenters suggested that the Secretary
establish a basic COE of required information that States could add to,
but not subtract from, to document eligibility. Another commenter
suggested that, rather than requiring the use of a single national
form, the Department specify certain required data fields to be
included on each State's individual form. Still another commenter
suggested that, rather than require use of a national COE, the
Department should allow States to submit their COEs to the Department
for approval. According to the commenter, this approach would provide
States with flexibility in developing the COE and still ensure that
each State's COE contains the minimum data necessary to document
eligibility.
Several commenters stated that additional cost and effort will be
required to change existing individual State forms to a national form
and to align existing migratory student data systems to the national
COE. One commenter noted that each subsequent change to a national COE
would necessitate changes to the forms and databases used by the
States.
One commenter stated that we should not require parental signatures
on the COE. The commenter noted that inclusion of the parental
signature placed the burden for accuracy on the migratory parent,
rather than on the program recruiter who completes the
[[Page 44120]]
COE. The commenter also stated that the COE would have to be translated
into Spanish, so that parents who only speak Spanish could understand
what they are signing. The commenter also noted that the Department
should consider how the requirement would be applied if the migratory
parents were illiterate.
The commenter also suggested that the Department clarify the legal
consequences if it finds that a COE completed by a recruiter and signed
by the parent contains false information.
One commenter expressed concern that the proposed COE does not
include information about how the data collected will be shared. The
commenter believed that including such a statement on the COE was
necessary under the Family Educational Rights and Privacy Act (FERPA).
Finally, one commenter requested that we clarify what would be
considered ``additional documentation'' under Sec. 200.89(c)(2). The
commenter stated that without this clarification, the commenter's
agency would be unable to assess the impact of this aspect of the
proposed regulation. Another commenter also stated that this term could
be interpreted differently from State to State and, therefore,
suggested that it be clarified.
Discussion: As discussed in the NPRM [72 FR 25235], the Secretary
believes that the establishment and use of a national COE, as proposed
in Sec. 200.89(c)(1), are necessary to (1) ensure consistency among
the various State programs in recording, retaining and transferring MEP
records; and (2) help prevent incorrect eligibility decisions that
might occur because of a State's use of a COE the SEA had produced that
is not fully adequate. The Secretary understands the desire expressed
by commenters for continued use of their own States' COEs or for an
alternative that would have the Secretary establish only the minimum
content of their States' COEs. However, the Secretary believes that
information gathered in the course of State audits and the national re-
interview initiative confirm that SEAs have used too many different
iterations of COEs that in one way or another are problematic, and that
program integrity now demands use of a common reporting form that all
States will use when making determinations about migrant eligibility.
The Secretary recognizes that the use of the national COE will
require some SEAs to change somewhat their existing practices for
documenting eligibility, and that these changes will have implications
in the short run relative to costs and staff time. However, given that
all SEAs have for many years voluntarily used some form of COE to
document eligibility that contains most if not all the required data
fields in the proposed national COE, the Secretary does not believe
that costs and staff time (all of which may be paid with MEP funds)
associated with substituting the national COE for their State COEs and
revising their databases accordingly will be so great as to outweigh
the advantages to the MEP as a whole of using a standard national COE.
The Secretary thanks the commenters for their input on the final
format and content of the COE, including the requirement for the COE to
be signed by the parent. We are currently working with OMB to finalize
this data collection and will be considering these comments in making
revisions to the national COE. The public also will have a further
opportunity to comment on the revised national COE and the associated
information collection package [1810-0662] following the publication of
these final regulations, and we will consider those comments as we
finalize the data collection. Once the complete information collection
package is approved by OMB, we will provide training and technical
assistance on use of the national COE, on issues that include the need
for the parental signature and the rights and responsibilities of COE
signatories under FERPA and the False Claims Act, through non-
regulatory guidance and the Department's Migrant Education Resource
Center (MERC).
We now address comments about the meaning of the requirement in
Sec. 200.89(c)(2) that the SEA and its operating agencies ``develop
and maintain such additional documentation as may be necessary to
confirm that each child found eligible for this program meets all of
the eligibility definitions in Sec. 200.81,'' and that different
States may require different information to be collected to document
eligibility. We proposed this provision in recognition of the fact
that, depending on the circumstances of individual children, a State
may determine that documentation of a child's eligibility for the MEP
requires more than the mere summary of a parental interview as recorded
on the national COE. Such additional documentation might include, for
example, information validating temporary employment, explaining the
specific circumstances regarding personal subsistence or economic
necessity, or re-interviewing results. The additional documentation
requirement also permits inclusion of any other items of information
currently collected by States that are, according to several
commenters, not included on the national COE.
Changes: None.
Section 200.89(d) Responsibilities of an SEA to establish and
implement a system of quality controls for the proper identification of
eligible migratory children.
Comments: Seven commenters addressed one or more elements of the
proposed quality control requirements in Sec. 200.89(d).
Three commenters indicated that the proposed quality control
procedures in Sec. 200.89(d) would adequately ensure high quality in
program eligibility determinations, and that their implementation, in
concert with other suggestions these commenters made regarding the re-
interviewing requirements in Sec. 200.89(b), would reduce the need for
substantial, annual face-to-face re-interviewing and thereby preserve
program resources and reduce alienation from the program. One commenter
recommended that the Department reconsider regulating on how SEAs
implement quality control procedures. This commenter suggested that
many States have addressed their previously identified quality control
problems. The commenter also stated that the proposed regulatory
requirements in this section would be costly to implement and would
require States to reallocate program funds that are currently spent on
services to children, without effectively reducing defective
eligibility determinations beyond the current levels. This commenter
also proposed that States that have effective quality control systems
in place and can document a defect rate that is lower than the national
average should be exempt from the proposed quality control requirements
in this section.
One commenter expressed concern that the formal process for
resolving eligibility questions and distributing written rulings
required in paragraph (d)(3) was overly prescriptive and burdensome.
Another commenter, while expressing various concerns about the quality
of the identification and recruitment practices in the commenter's
State, suggested that the Secretary establish, by regulation, several
additional quality control requirements regarding the qualifications,
hourly pay, and training of recruiters.
Discussion: As discussed in the preamble to the NPRM (72 FR 25236),
the Secretary believes that, given that defective eligibility
determinations were uncovered in virtually every State during the
voluntary re-interviewing
[[Page 44121]]
initiative, it is necessary to establish, through regulation, a minimum
set of responsibilities that all States must establish for quality
control of their MEP identification and recruitment procedures. The
Secretary recognizes that most SEAs are currently implementing some or
all of these requirements voluntarily and that, in cases where an SEA
is not now implementing one or more of the regulatory requirements,
that SEA will face an increased expenditure of time, effort and funds
to implement the other regulatory requirements of this section.
However, given that the Secretary believes that the regulations
represent a minimum set of requirements, the Secretary does not believe
that situations noted by the commenters (having a defect rate lower
than the national average, voluntarily implementing one or another
quality control activity, or the increased effort and expenditures that
would need to be devoted to implementing all of the proposed quality
control procedures) justify exempting any SEA from the responsibility
to establish and implement all of these quality control measures.
Moreover, if, as the commenters suggest, most SEAs already have
addressed their identified quality control problems by voluntarily
implementing some or all of these procedures, the requirements in
paragraph (d) will not place an undue burden on State and local MEP
staff. This said, the Secretary agrees that the language in paragraph
(d)(3), as proposed, may be overly prescriptive in that requiring
written copies of all policy determinations to be transmitted to all
LOAs might not always be needed in order to meet the basic intent of
this regulatory provision--ensuring the sharing of SEA policy
interpretations regarding program eligibility with local program
personnel.
Finally, the Secretary believes that more technical aspects of
quality control, such as the qualifications and training of recruiters,
are matters better addressed through suggested best practices in non-
regulatory guidance, rather than as regulatory requirements.
Change: We have amended Sec. 200.89(d)(3) to remove the
requirement that answers to eligibility questions be transmitted from
the SEA to its LOAs in written form.
Comment: None.
Discussion: As part of our internal review of the final
regulations, we have determined that a technical edit needed to be made
to paragraph (d)(7) of Sec. 200.89 in order to clarify that the
corrective actions mentioned in that paragraph may also result from
monitoring or audit findings of the Secretary or the State.
Changes: We have modified the language in paragraph (d)(7) to
clarify that Federal monitoring or audit findings, as well as internal
State audit findings and recommendations, may also trigger the SEA's
process for implementing corrective actions.
Executive Order 12866
Under Executive Order 12866, the Secretary must determine whether
this regulatory action is ``significant'' and therefore subject to the
requirements of the Executive Order and subject to review by OMB.
Section 3(f) of Executive Order 12866 defines a ``significant
regulatory action'' as an action likely to result in a rule that may
(1) have an annual effect on the economy of $100 million or more, or
adversely affect a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local or
tribal governments, or communities in a material way (also referred to
as an ``economically significant'' rule); (2) create serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; (3) materially alter the budgetary impacts of
entitlement grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the Executive order. The Secretary has
determined that this regulatory action is significant under section
3(f)(4) of the Executive order.
We have reviewed these final regulations in accordance with
Executive Order 12866. Under the terms of the order we have assessed
the potential costs and benefits of this regulatory action.
The potential costs associated with the final regulations are those
resulting from statutory requirements and those we have determined to
be necessary for administering this program effectively and
efficiently.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these final regulations, we have determined that
the benefits of the regulations justify the costs.
We have also determined that this regulatory action does not unduly
interfere with State, local, and tribal governments in the exercise of
their governmental functions.
Summary of Potential Costs and Benefits
These regulations require SEAs to establish specific procedures to
standardize and improve the accuracy of program eligibility
determinations and clarify requirements for development of
comprehensive statewide needs assessments and service delivery plans.
The primary impact of the regulations is on SEAs that receive MEP funds
and the children who are eligible for services under the MEP. By
requiring SEAs to establish procedures to improve the accuracy of their
eligibility determinations, the regulations will ensure that program
funds and the services they fund are directed only to children who are
eligible to receive services and reduce the possibility that children
who are not eligible for services receive program benefits. The
regulations issued through this notice also add clarity where the
statute is ambiguous or unclear.
The Department estimates that the additional annual cost to
recipients to comply with these regulations will be approximately $4.5
million:
Adding measurable program outcomes to the State
comprehensive MEP service delivery plan [Sec. 200.83] will cost
approximately $600 annually in total across all SEAs;
Re-interviewing samples of students [Sec. 200.89(b)] will
cost approximately $220,000 annually in total across all SEAs;
Documenting the eligibility of migratory children,
including the use of a standard COE [Sec. 200.89(c)] will cost
approximately $2.8 million annually in total across all SEAs; and
Institution of specific quality control procedures [Sec.
200.89(d)] will cost approximately $1.5 million annually in total
across all SEAs.
This estimate is based on and further explained in the information
collection package required under the Paperwork Reduction Act of 1995
and discussed in more detail elsewhere in this notice in the sections
entitled Analysis of Comments and Changes and Paperwork Reduction Act
of 1995.
These regulations will not add significantly to the costs of
implementing the MEP since we estimate that the SEAs are currently
expending approximately these amounts implementing various eligibility
determination activities, but the regulations will add significantly to
the consistency of eligibility determinations by standardizing the
eligibility determination process nationally. The activities required
by these regulations will be financed through the
[[Page 44122]]
appropriation for Title I, Part C (MEP) and will not impose a financial
burden that SEAs and local educational agencies will have to meet from
non-Federal resources.
The regulations will help maintain public confidence in the program
and ensure its continued operational integrity. Department analyses
have shown that, on average, close to 12 percent of the children
identified by SEAs as eligible for services for school year 2003-04 did
not meet the statutory eligibility criteria. The regulations provide a
benefit by ensuring that program funds are directed only to eligible
migratory children. Increased accuracy will also ensure that program
funds are allocated in the proper amounts and to the locations where
eligible children reside. If implementation of the regulations results
in 12 percent of currently participating children being determined
ineligible, then some $46 million annually (12 percent of the
appropriation) would be redirected from services to statutorily
ineligible children to serving children who meet the statutory
criteria. Because the statute is intended to focus on eligible children
who have a genuine need for services (as a result of having made a
qualifying move), there is a clear societal benefit to ensuring that
program funds are used only to serve eligible students.
More specifically, society as a whole benefits when migratory
children receive educational services targeted to their specific needs.
As noted in numerous studies since the nineteen sixties,\4\ the
migratory children who are eligible to receive program benefits
constitute a particularly needy and vulnerable school population.
Migrant families tend to live in poverty, speak limited English, and
lack access to preventive medical care. Few children from migrant
families attend preschool, and they are often enrolled in high-poverty
schools. Migratory youth are at high risk for dropping out of school
without attaining a high school diploma. Access to education can help
mitigate the effect of these risk factors. Preschool education prepares
small children for the demands of elementary education and encourages
parents to become active learners along with their children. Children
who receive educational services targeted to address their specific
needs are more likely to be successful in school and to receive other
marginal services, such as vaccinations and health screenings, that are
associated with school attendance. Youth who complete high school
generally earn more in their lifetime than those who don't earn a high
school diploma. These regulations benefit society because they require
safeguards to ensure that the neediest migrant children will be
identified and receive the services that will help them succeed in
school.
---------------------------------------------------------------------------
\4\ See, for example, Invisible Children: A portrait of migrant
education in the United States, National Commission on Migrant
Education, U.S. Govt. Printing Office, Sept. 23, 1992; and The same
high standards for migrant students: Holding Title I schools
accountable, United States Department of Education, Washington DC,
2002.
---------------------------------------------------------------------------
There is also a potential cost to migratory children if these
regulations are not enacted. In the absence of regulations, recipients
have diluted the quantity and quality of services available to children
who are legitimately eligible for services under the program by serving
significant numbers of children who are not eligible. Since MEP
services are only available to eligible children for a short period of
time, preventing truly eligible migratory children from receiving the
services they are entitled to may have an adverse effect on their
educational attainment.
Paperwork Reduction Act of 1995
The regulations listed in the following chart contain information
collection requirements. Under the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)), the Department of Education has submitted a copy of
these sections to OMB for its review.
------------------------------------------------------------------------
Collection
Regulatory section information Collection
------------------------------------------------------------------------
Sec. 200.83............... Requires SEAs to add ``Migrant Education
measurable program Program (MEP)
outcomes into the Regulations and
comprehensive MEP Certificate of
State plan for Eligibility
service delivery. (COE).'' OMB No.
1810-0662.
Sec. 200.89(b)(1)......... Requires SEAs to ``Migrant Education
conduct Program (MEP)
retrospective re- Regulations and
interviewing. Certificate of
Eligibility
(COE).'' OMB No.
1810-0662.
Sec. 200.89(b)(2)......... Requires SEAs to ``Migrant Education
conduct prospective Program (MEP)
re-interviewing. Regulations and
Certificate of
Eligibility
(COE).'' OMB No.
1810-0662.
Sec. 200.89(c)............ Requires SEAs to ``Migrant Education
document the Program (MEP)
eligibility of Regulations and
migratory children. Certificate of
Eligibility
(COE).'' OMB No.
1810-0662.
Sec. 200.89(d)............ Requires SEAs to ``Migrant Education
establish a system Program (MEP)
of quality controls. Regulations and
Certificate of
Eligibility
(COE).'' OMB No.
1810-0662.
------------------------------------------------------------------------
Respondents to this collection consist of SEAs and their LOA
subgrantees (usually, but not exclusively, LEAs) as well as parents of
migratory children. The collection of information is necessary to
accurately identify and serve eligible migratory children. The proposed
frequency of response is no more than annually.
The estimated total annual reporting and recordkeeping burden that
will result from the collection of information is 510,456 hours. The
estimated average burden hours per response are approximately 1,580
hours per each of 15 State respondents (i.e., SEA and subgrantee
staff), and 0.5 hours per each of 4,500 migrant parent respondents to
address (on a one-time basis) the requirements of Sec. 200.89(b)(1)
for retrospective re-interviewing. We estimate that it will require
approximately 152 hours per each of 49 State respondents and 0.5 hours
per each of 2,450 migrant parent respondents to address (annually) the
requirements of Sec. 200.89(b)(2) for prospective re-interviewing. We
estimate that it will require approximately 17,347 hours per each of 49
States and 1.5 hours per each of 300,000 parents (overall) to address
the requirements of Sec. 200.89(c) for documenting the eligibility of
migratory children. We estimate that it will require approximately
1,220 hours per each of 49 States to address (annually) the
requirements of Sec. 200.89(d) to establish and implement adequate
quality controls. We also estimate that the data burden associated with
the proposed change in Sec. 200.83 to add measurable program outcomes
into the comprehensive MEP State plan for service delivery will not
total more than one hour per SEA.
If you want to comment on the information collection requirements,
[[Page 44123]]
please address your comments to the Desk Officer for Education, Office
of Information and Regulatory Affairs, OMB, and send via e-mail to
OIRA_DOCKET@omb.eop.gov or via fax to (202) 395-6974. Commenters need
only submit comments via one submission medium. You may also send a
copy of these comments to the Department representative named in the
FOR FURTHER INFORMATION CONTACT section of this preamble. We consider
your comments on these proposed collections of information in--
Deciding whether the proposed collections are necessary
for the proper performance of our functions, including whether the
information will have practical use;
Evaluating the accuracy of our estimate of the burden of
the proposed collections, including the validity of our methodology and
assumptions;
Enhancing the quality, usefulness, and clarity of the
information we collect; and
Minimizing the burden on those who must respond. This
includes exploring the use of appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology; e.g., permitting electronic submission of
responses.
OMB is required to make a decision concerning the collections of
information contained in these proposed regulations between 30 and 60
days after publication of this document in the Federal Register.
Therefore, to ensure that OMB gives your comments full consideration,
it is important that OMB receives the comments within 30 days of
publication.
Intergovernmental Review
This program is subject to the requirements of Executive Order
12372 and the regulations in 34 CFR part 79. The objective of the
Executive Order is to foster an intergovernmental partnership and a
strengthened federalism by relying on processes developed by State and
local governments for coordination and review of proposed Federal
financial assistance.
In accordance with the order, we intend this document to provide
early notification of the Department's specific plans and actions for
this program.
Electronic Access to This Document
You may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe
Portable Document Format (PDF) on the Internet at the following site:
http://www.ed.gov/news/fedregister.
To use PDF you must have Adobe Acrobat Reader, which is available
free at this site. If you have questions about using PDF, call the U.S.
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in
the Washington, DC, area at (202) 512-1530.
You may also view this document in text or PDF at the following
site: http://www.ed.gov/programs/mep/legislation.html.
Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at:
http://www.gpoaccess.gov/nara/index.html.
(Catalog of Federal Domestic Assistance Number 84.011: Title I,
Education of Migrant Children.)
List of Subjects in 34 CFR Part 200
Administrative practice and procedure, Adult education, Allocation
of funds, Children, Coordination, Education of children with
disabilities, Education of disadvantaged children, Elementary and
secondary education, Eligibility, Family, Family-centered education,
Grant programs--education, Indians--education, Institutions of higher
education, Interstate coordination, Intrastate coordination, Juvenile
delinquency, Local educational agencies, Local operating agencies,
Migratory children, Migratory workers, Neglected, Nonprofit private
agencies, Private schools, Public agencies, Quality control, Re-
interviewing, Reporting and recordkeeping requirements, State-
administered programs, State educational agencies, Subgrants.
Dated: July 18, 2008.
Kerri L. Briggs,
Assistant Secretary for Elementary and Secondary Education.
0
For the reasons discussed in the preamble, the Secretary amends part
200 of title 34 of the Code of Federal Regulations as follows:
PART 200--TITLE I--IMPROVING THE ACADEMIC ACHIEVEMENT OF THE
DISADVANTAGED
0
1. The authority citation for part 200 continues to read as follows:
Authority: 20 U.S.C. 6301 through 6578, unless otherwise noted.
0
2. Revise Sec. 200.81 to read as follows:
Sec. 200.81 Program definitions.
The following definitions apply to programs and projects operated
under subpart C of this part:
(a) Agricultural work means the production or initial processing of
crops, dairy products, poultry, or livestock, as well as the
cultivation or harvesting of trees. It consists of work performed for
wages or personal subsistence.
(b) Fishing work means the catching or initial processing of fish
or shellfish or the raising or harvesting of fish or shellfish at fish
farms. It consists of work performed for wages or personal subsistence.
(c) In order to obtain, when used to describe why a worker moved,
means that one of the purposes of the move is to seek or obtain
qualifying work.
(1) If a worker states that a purpose of the move was to seek any
type of employment, i.e., the worker moved with no specific intent to
find work in a particular job, the worker is deemed to have moved with
a purpose of obtaining qualifying work if the worker obtains qualifying
work soon after the move.
(2) Notwithstanding the introductory text of this paragraph (c), a
worker who did not obtain qualifying work soon after a move may be
considered to have moved in order to obtain qualifying work only if the
worker states that at least one purpose of the move was specifically to
seek the qualifying work, and--
(i) The worker is found to have a prior history of moves to obtain
qualifying work; or
(ii) There is other credible evidence that the worker actively
sought qualifying work soon after the move but, for reasons beyond the
worker's control, the work was not available.
(d) Migratory agricultural worker means a person who, in the
preceding 36 months, has moved, as defined in paragraph (g), from one
school district to another, or from one administrative area to another
within a State that is comprised of a single school district, in order
to obtain temporary employment or seasonal employment in agricultural
work, including dairy work.
(e) Migratory child means a child--
(1) Who is a migratory agricultural worker or a migratory fisher;
or
(2) Who, in the preceding 36 months, in order to accompany or join
a parent, spouse, or guardian who is a migratory agricultural worker or
a migratory fisher--
(i) Has moved from one school district to another;
(ii) In a State that is comprised of a single school district, has
moved from one administrative area to another within such district; or
(iii) As the child of a migratory fisher, resides in a school
district of more than
[[Page 44124]]
15,000 square miles, and migrates a distance of 20 miles or more to a
temporary residence.
(f) Migratory fisher means a person who, in the preceding 36
months, has moved, as defined in paragraph (g), from one school
district to another, or from one administrative area to another within
a State that is comprised of a single school district, in order to
obtain temporary employment or seasonal employment in fishing work.
This definition also includes a person who, in the preceding 36 months,
resided in a school district of more than 15,000 square miles and
moved, as defined in paragraph (g), a distance of 20 miles or more to a
temporary residence in order to obtain temporary employment or seasonal
employment in fishing work.
(g) Move or Moved means a change from one residence to another
residence that occurs due to economic necessity.
(h) Personal subsistence means that the worker and the worker's
family, as a matter of economic necessity, consume, as a substantial
portion of their food intake, the crops, dairy products, or livestock
they produce or the fish they catch.
(i) Qualifying work means temporary employment or seasonal
employment in agricultural work or fishing work.
(j) Seasonal employment means employment that occurs only during a
certain period of the year because of the cycles of nature and that, by
its nature, may not be continuous or carried on throughout the year.
(k) Temporary employment means employment that lasts for a limited
period of time, usually a few months, but no longer than 12 months. It
typically includes employment where the employer states that the worker
was hired for a limited time frame; the worker states that the worker
does not intend to remain in that employment indefinitely; or the SEA
has determined on some other reasonable basis that the employment is
temporary. The definition includes employment that is constant and
available year-round only if, within 18 months after the effective date
of this regulation and at least once every three years thereafter, the
SEA documents that, given the nature of the work, of those workers
whose children were previously determined to be eligible based on the
State's prior determination of the temporary nature of such employment
(or the children themselves if they are the workers), virtually no
workers remained employed by the same employer more than 12 months.
0
3. Amend Sec. 200.83 as follows:
0
a. Redesignate paragraphs (a)(3) and (a)(4) as paragraphs (a)(4) and
(a)(5), respectively, and add a new paragraph (a)(3).
0
b. Revise the introductory text of redesignated paragraph (a)(4).
The revision and addition read as follows:
Sec. 200.83 Responsibilities of SEAs to implement projects through a
comprehensive needs assessment and a comprehensive State plan for
service delivery.
(a) * * *
(3) Measurable program outcomes. The plan must include the
measurable program outcomes (i.e., objectives) that a State's migrant
education program will produce to meet the identified unique needs of
migratory children and help migratory children achieve the State's
performance targets identified in paragraph (a)(1) of this section.
(4) Service delivery. The plan must describe the strategies that
the SEA will pursue on a statewide basis to achieve the measurable
program outcomes in paragraph (a)(3) of this section by addressing--
* * * * *
0
4. Add Sec. 200.89 to read as follows:
Sec. 200.89 MEP allocations; Re-interviewing; Eligibility
documentation; and Quality control.
(a) Allocation of funds under the MEP for fiscal year (FY) 2006 and
subsequent years. (1) For purposes of calculating the size of MEP
allocations for each SEA for FY 2006 and subsequent years (as well as
for supplemental MEP allocations for FY 2005), the Secretary determines
each SEA's FY 2002 base allocation amount under section 1303(a)(2) and
(b) of the Act by applying, to the counts of eligible migratory
children that the SEA submitted for 2000-2001, the defect rate that the
SEA reports to the Secretary and that the Secretary accepts based on a
statewide retrospective re-interviewing process that the SEA has
conducted.
(2)(i) The Secretary conditions an SEA's receipt of final FY 2007
and subsequent-year MEP awards on the SEA's completion of a thorough
re-documentation of the eligibility of all children (and the removal of
all ineligible children) included in the State's 2007-2008 MEP child
counts.
(ii) To carry out this re-documentation, an SEA must examine its
rolls of all currently identified migratory children and remove from
the rolls all children it judges to be ineligible based on the types of
problems identified in its statewide retrospective re-interviewing as
causing defective eligibility determinations.
(b) Responsibilities of SEAs for re-interviewing to ensure the
eligibility of children under the MEP.
(1) Retrospective re-interviewing.
(i) As a condition for the continued receipt of MEP funds in FY
2006 and subsequent years, an SEA that received such funds in FY 2005
but did not implement a statewide re-interviewing process prior to the
enactment of this regulation, as well as an SEA with a defect rate that
is not accepted by the Secretary under paragraph (a)(1) of this
section, or an SEA under a corrective action issued by the Secretary
under paragraph (b)(2)(vii) or (d)(7) of this section, must, within six
months of the effective date of these regulations or as subsequently
required by the Secretary,--
(A) Conduct a statewide re-interviewing process consistent with
paragraph (b)(1)(ii) of this section; and
(B) Consistent with paragraph (b)(1)(iii) of this section, report
to the Secretary on the procedures it has employed, its findings, its
defect rate, and corrective actions it has taken or will take to avoid
a recurrence of any problems found.
(ii) At a minimum, the re-interviewing process must include--
(A) Selection of a sample of identified migratory children (from
the child counts of a particular year as directed by the Secretary)
randomly selected on a statewide basis to allow the State to estimate
the statewide proportion of eligible migratory children at a 95 percent
confidence level with a confidence interval of plus or minus 5 percent.
(B) Use of independent re-interviewers (i.e., interviewers who are
neither SEA or local operating agency staff members working to
administer or operate the State MEP nor any other persons who worked on
the initial eligibility determinations being tested) trained to conduct
personal interviews and to understand and apply program eligibility
requirements; and
(C) Calculation of a defect rate based on the number of sampled
children determined ineligible as a percentage of those sampled
children whose parent/guardian was actually re-interviewed.
(iii) At a minimum, the report must include--
(A) An explanation of the sample and procedures used in the SEA's
re-interviewing process;
(B) The findings of the re-interviewing process, including the
determined defect rate;
(C) An acknowledgement that, consistent with Sec. 200.89(a), the
Secretary may adjust the child counts for 2000-2001 and subsequent
years
[[Page 44125]]
downward based on the defect rate that the Secretary accepts;
(D) A summary of the types of defective eligibility determinations
that the SEA identified through the re-interviewing process;
(E) A summary of the reasons why each type of defective eligibility
determination occurred; and
(F) A summary of the corrective actions the SEA will take to
address the identified problems.
(2) Prospective re-interviewing. As part of the system of quality
controls identified in Sec. 200.89(d), an SEA that receives MEP funds
must, on an annual basis, validate current-year child eligibility
determinations through the re-interview of a randomly selected sample
of children previously identified as migratory. In conducting these re-
interviews, an SEA must--
(i) Use, at least once every three years, one or more independent
interviewers (i.e., interviewers who are neither SEA or local operating
agency staff members working to administer or operate the State MEP nor
any other persons who worked on the initial eligibility determinations
being tested) trained to conduct personal interviews and to understand
and apply program eligibility requirements;
(ii) Select a random sample of identified migratory children so
that a sufficient number of eligibility determinations in the current
year are tested on a statewide basis or within categories associated
with identified risk factors (e.g., experience of recruiters, size or
growth in local migratory child population, effectiveness of local
quality control procedures) in order to help identify possible problems
with the State's child eligibility determinations;
(iii) Conduct re-interviews with the parents or guardians of the
children in the sample. States must use a face-to-face approach to
conduct these re-interviews unless circumstances make face-to-face re-
interviews impractical and necessitate the use of an alternative method
such as telephone re-interviewing;
(iv) Determine and document in writing whether the child
eligibility determination and the information on which the
determination was based were true and correct;
(v) Stop serving any children found not to be eligible and remove
them from the data base used to compile counts of eligible children;
(vi) Certify and report to the Department the results of re-
interviewing in the SEA's annual report of the number of migratory
children in the State required by the Secretary; and
(vii) Implement corrective actions or improvements to address the
problems identified by the State (including the identification and
removal of other ineligible children in the total population), and any
corrective actions, including retrospective re-interviewing, required
by the Secretary.
(c) Responsibilities of SEAs to document the eligibility of
migratory children. (1) An SEA and its operating agencies must use the
Certificate of Eligibility (COE) form established by the Secretary to
document the State's determination of the eligibility of migratory
children.
(2) In addition to the form required under paragraph (a) of this
section, the SEA and its operating agencies must maintain any
additional documentation the SEA requires to confirm that each child
found eligible for this program meets all of the eligibility
definitions in Sec. 200.81.
(3) An SEA is responsible for the accuracy of all the
determinations of the eligibility of migratory children identified in
the State.
(d) Responsibilities of an SEA to establish and implement a system
of quality controls for the proper identification and recruitment of
eligible migratory children. An SEA must establish and implement a
system of quality controls for the proper identification and
recruitment of eligible migratory children on a statewide basis. At a
minimum, this system of quality controls must include the following
components:
(1) Training to ensure that recruiters and all other staff involved
in determining eligibility and in conducting quality control procedures
know the requirements for accurately determining and documenting child
eligibility under the MEP.
(2) Supervision and annual review and evaluation of the
identification and recruitment practices of individual recruiters.
(3) A formal process for resolving eligibility questions raised by
recruiters and their supervisors and for ensuring that this information
is communicated to all local operating agencies.
(4) An examination by qualified individuals at the SEA or local
operating agency level of each COE to verify that the written
documentation is sufficient and that, based on the recorded data, the
child is eligible for MEP services.
(5) A process for the SEA to validate that eligibility
determinations were properly made, including conducting prospective re-
interviewing as described in paragraph (b)(2).
(6) Documentation that supports the SEA's implementation of this
quality-control system and of a record of actions taken to improve the
system where periodic reviews and evaluations indicate a need to do so.
(7) A process for implementing corrective action if the SEA finds
COEs that do not sufficiently document a child's eligibility for the
MEP, or in response to internal State audit findings and
recommendations, or monitoring or audit findings of the Secretary.
Authority: 20 U.S.C. 6391-6399, 6571, 7844(d); 18 U.S.C. 1001.
[FR Doc. E8-16859 Filed 7-28-08; 8:45 am]
BILLING CODE 4000-01-P