FR Doc E7-8580
[Federal Register: May 4, 2007 (Volume 72, Number 86)]
[Proposed Rules]
[Page 25228-25241]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04my07-15]
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DEPARTMENT OF EDUCATION
34 CFR Part 200
[Docket ID ED-2007-OESE-0130]
RIN 1810-AA99
Title I--Improving the Academic Achievement of the Disadvantaged
(Subpart C--Migrant Education Program)
AGENCY: Office of Elementary and Secondary Education, Department of
Education.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Secretary proposes to amend 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 proposed regulations are needed to 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 awards 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: We must receive your comments on or before June 18, 2007.
ADDRESSES: Submit your comments through the Federal eRulemaking Portal
[[Page 25229]]
or via postal mail, commercial delivery, or hand delivery. We will not
accept comments by fax or by e-mail. Please submit your comments only
one time, in order to ensure that we do not receive duplicate copies.
In addition, please include the Docket ID at the top of your comments.
Federal eRulemaking Portal: Go to http://www.regulations.gov
, select ``Department of Education'' from the agency
drop-down menu, then click ``Submit.'' In the Docket ID column, select
ED-2007-OESE-0130 to add or view public comments and to view supporting
and related materials available electronically. Information on using
Regulations.gov, including instructions for submitting comments,
accessing documents, and viewing the docket after the close of the
comment period, is available through the site's ``User Tips'' link.
Postal Mail, Commercial Delivery, or Hand Delivery. If you
mail or deliver your comments about these proposed regulations, address
them to James J. English, U.S. Department of Education, 400 Maryland
Avenue, SW., room 3E315, FB6, Washington, DC, 20202-6135.
Privacy Note: The Department's policy for comments received from
members of the public (including those comments submitted by mail,
commercial delivery, or hand delivery) is to make these submissions
available for public viewing on the Federal eRulemaking Portal at
http://www.regulations.gov. All submissions will be posted to the
Federal eRulemaking Portal without change, including personal
identifiers and contact information.
FOR FURTHER INFORMATION CONTACT: James J. English. 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 under FOR FURTHER
INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION:
Invitation To Comment
We invite you to submit comments regarding these proposed
regulations. To ensure that your comments have maximum effect in
developing the final regulations, we urge you to identify clearly the
specific section or sections of the proposed regulations that each of
your comments addresses and to arrange your comments in the same order
as the proposed regulations.
We invite you to assist us in complying with the specific
requirements of Executive Order 12866 and its overall requirement of
reducing regulatory burden that might result from these proposed
regulations. Please let us know of any further opportunities we should
take to reduce potential costs or increase potential benefits while
preserving the effective and efficient administration of the program.
During and after the comment period, you may inspect all public
comments about these proposed regulations by accessing Regulations.gov.
You may also inspect the comments, in person, in room 3E315, FB-6, 400
Maryland Ave., SW., Washington, DC, between the hours of 8:30 a.m. and
4 p.m., Eastern time, Monday through Friday of each week except Federal
holidays.
Assistance to Individuals With Disabilities in Reviewing the Rulemaking
Record
On request, we will supply an appropriate aid, such as a reader or
print magnifier, to an individual with a disability who needs
assistance to review the comments or other documents in the public
rulemaking record for these proposed regulations. If you want to
schedule an appointment for this type of aid, please contact the person
listed under FOR FURTHER INFORMATION CONTACT.
Background
The Department provides MEP formula grants to SEAs to establish or
improve programs of education for the Nation's migrant children. These
programs of education are expected to address the identified
educational and educationally related needs of migrant children that
result from their migratory lifestyle and to permit migrant children to
participate effectively in school.
Under the ESEA, a core responsibility of each SEA is to ensure that
only those children who are eligible for the MEP are identified,
counted, and served. Meeting this responsibility is key to ensuring
that-- (1) States provide MEP-funded services only to eligible migrant
children; (2) Each SEA's MEP allocation accurately reflects its
statutory share of the funds that Congress annually appropriates for
the MEP; and (3) Public confidence in the program's integrity remains
strong.
With regard to State MEP allocations, since FY 2002 the amount of
an SEA's annual MEP award under section 1303(a)(2) of the ESEA has been
tied to the level of its FY 2002 base-year MEP award, which itself is
dependent in large part on the SEA's 2000-2001 count of eligible
migratory children residing in the State in relation to the counts of
other States.
Over the last few years, the Department has become increasingly
concerned about the accuracy and consistency of the processes SEAs have
used to determine the eligibility of migratory children and the counts
of children eligible for services that the SEAs report to the
Department. Since 2004, the Office of Elementary and Secondary
Education (OESE) and the Office of Inspector General (OIG) have
undertaken efforts to examine SEA processes and child counts more
closely. In order to assess and confirm the correctness of SEA
eligibility determinations, OESE designed and implemented a process
under which SEAs voluntarily re-interviewed a statewide, random sample
of children they had identified as eligible for the MEP during the
2003-2004 program year. OESE provided guidance on reasonable ways to
choose a random sample and to conduct this re-interviewing process, and
requested that, following the re-interviews, participating States
determine and report to the Department their ``defect rate'' (i.e., the
percentage of children in the State's 2003-2004 re-interview sample
that were determined ineligible under the re-interview process).
To date, the vast majority of SEAs have voluntarily completed a re-
interviewing process and reported their defect rates. The State-
reported defect rates range from zero percent to 100 percent, with a
mean defect rate of 9.8 percent and a median defect rate of 5.6
percent. The States that have reported defect rates account for more
than 98 percent of the reported count of migratory children eligible
for services nationally in the 2003-2004 program year.
Independently, the OIG has completed or, in some cases, is still
conducting audits and investigations in a number of States (including
States that did not initially participate in OESE's voluntary re-
interviewing initiative) and has found errors in State migratory child
eligibility counts. In some cases, the errors the OIG or the States
found on their own may be actionable as civil or criminal fraud. In
other cases, errors may reflect incorrect interpretations of MEP
eligibility requirements. In most cases, however, the errors seem
attributable to factors such as: Poor training of State and local
personnel responsible for determining eligibility; weak quality-control
procedures for reviewing child eligibility determinations; and a lack
of uniformity
[[Page 25230]]
in the implementation of the MEP eligibility requirements.
The OIG findings and the SEA-reported defect rates are very
troubling for several reasons. First, they suggest that the level and
quality of MEP-funded services that eligible migrant students needed
and deserved have been diluted by the delivery of services to children
who were not eligible to receive them. Second, they suggest that, over
the last several years, the Department may have awarded MEP funds to
States on the basis of inaccurate and, in some cases, perhaps
significantly inflated State counts of eligible children. And third,
because section 1303 of the ESEA requires the Department to use the FY
2002 State MEP allocation as the ``base amount'' for allocations made
to SEAs in subsequent years, the State MEP allocations for FY 2006 and
each subsequent year (as well as supplemental FY 2005 awards that were
issued in September 2006) will continue to be flawed unless the
Department takes action.
Given these considerations, the Secretary is proposing these
regulations, which would: Provide for the adjustment of the base
amounts of the FY 2006 and subsequent year MEP allocations; clarify and
expand the definitions governing who is a ``migratory child''; and
establish requirements for SEAs to develop and implement rigorous
quality-control procedures in order to improve the accuracy of MEP
eligibility determinations and State counts of eligible migratory
children. The Secretary would also apply the procedures for determining
final MEP allocations for FY 2006 and beyond to supplemental FY 2005
MEP awards that were made in September 2006.
The Secretary also proposes to make minor changes to the current
regulations governing development of a comprehensive statewide needs
assessment and service delivery plan.
Significant Proposed Regulations
We discuss the following substantive issues under the sections of
the proposed regulations to which they pertain. Generally, we do not
address proposed regulatory provisions that are technical or otherwise
minor in effect.
Title I, Subpart C--Migrant Education Program
Section 200.81 Program Definitions
Agricultural Activity and Fishing Activity
Statute: The definition of migratory child in section 1309 of the
ESEA refers to agricultural work and fishing work but does not provide
for a definition of these terms or the terms agricultural activity and
fishing activity.
Current Regulations: Section 200.81(a) and (b) provides definitions
of agricultural activity and fishing activity. In the current
definitions, an agricultural activity is defined as any activity
directly related to: (1) The production or processing of agricultural
products for initial commercial sale or personal subsistence; (2) the
cultivation or harvesting of trees; or (3) fish farms. A fishing
activity is defined as any activity directly related to the catching or
processing of fish or shellfish for initial commercial sale or personal
subsistence.
Proposed Regulations: We propose to revise both the terms and
definitions relating to agricultural activity and fishing activity.
Specifically, we propose changing the terms agricultural activity and
fishing activity to agricultural work and fishing work, respectively.
We propose to remove the phrases ``an activity directly related to''
and ``for initial commercial sale'' from the definitions of both of
these terms and to add the word ``initial'' before the term
``processing'' in both definitions. We also propose modifying the
definitions of agricultural work and fishing work to include the phrase
``work performed generally for wages or in rare cases personal
subsistence.'' Finally, we would modify the definition of agricultural
work to remove the phrase ``any activity directly related to fish
farms''; the reference to fish farms would be added to the definition
of fishing work.
Reasons: We propose the changes to the current terms and
definitions of agricultural activity and fishing activity in order to
clarify and simplify these terms. Changing the terms agricultural
activity and fishing activity to agricultural work and fishing work
provides consistency with the statutory definition of migratory child
in section 1309(2) of the ESEA, which refers to a move being made to
obtain temporary or seasonal employment in agricultural or fishing
work. In addition, the phrase ``any activity directly related to'' in
the current definitions of agricultural activity and fishing activity
is unnecessary and confusing because it could be interpreted to include
an activity (such as trucking services that transport livestock or fish
to a processing plant or managing workers in a field or processing
plant) that may be directly related to agriculture or fishing but is
not inherently agricultural or fishing work; thus, we propose
eliminating this phrase.
Further, the phrase ``for initial commercial sale'' in the current
definitions of agricultural activity and fishing activity was primarily
intended to limit the scope of these definitions to work that is
involved with the initial processing of raw agricultural products,
fish, or shellfish. However, as the definitions are currently written,
use of the term ``initial'' with respect to a commercial sale is
confusing, as there are circumstances in the agriculture and fishing
industries where there may be two ``initial'' commercial sales: one
associated with the production of agricultural products, fish, or
shellfish, and the other associated with the processing of agricultural
products, fish, or shellfish. For example, wheat is harvested and sold
to a factory for processing into flour. The sale of the wheat to the
factory is the initial commercial sale of a crop to the processor. This
sale ends the production phase of the crop. The factory then processes
the wheat into flour and sells the flour to a bakery. The sale of the
flour to the bakery is an initial commercial sale of a processed
product (flour) to a next-stage processor and ends the processing phase
as a qualifying agricultural activity. Harvesting the wheat and
processing the wheat into flour both meet the definition of
agricultural activity because they are the production and processing of
a crop for initial commercial sale. On the other hand, the processing
of the flour into baked goods does not meet the definition of an
agricultural activity because an initial commercial sale of a processed
product had already occurred when the flour was sold to the bakery.
While removing the reference to ``initial commercial sale'', we
propose to add the word ``initial'' before the term ``processing'' in
both definitions in order to clarify that only initial processing of
raw products is considered agricultural work or fishing work for the
purposes of the MEP.
We propose specifying in the revised definitions of agricultural
work and fishing work that these types of work consist of ``work
performed generally for wages or in rare cases personal subsistence''
to clarify that, while there are some rare circumstances in which the
worker and his or her family do the work for personal subsistence, the
work is generally performed for wages. It is therefore appropriate to
include a reference to work performed ``generally for wages or in rare
cases personal subsistence.'' Finally, we propose to move the reference
to fish farms in the current definition of agricultural activity to the
new definition of fishing work
[[Page 25231]]
because this change reflects a more consistent and simpler way of
grouping work that involves fishing.
In Order To Obtain
Statute: Section 1309 of the ESEA provides in part that an
individual is considered a migratory child if the child or child's
parent, guardian, or spouse moved ``in order to obtain'' temporary or
seasonal employment in agricultural or fishing work.
Current Regulations: The current regulations do not define the
phrase `` `in order to obtain' * * * temporary or seasonal employment
in agricultural or fishing work.''
Proposed Regulations: We propose adding a definition of the term in
order to obtain to clearly require that one of the purposes of the move
must be to seek or obtain temporary or seasonal employment in
agricultural or fishing work and that, absent this intent, the worker
did not move ``in order to obtain'' temporary or seasonal employment in
agricultural or fishing work. In addition, our proposed definition
clarifies that a worker did not move in order to obtain temporary or
seasonal employment in agricultural or fishing work if the worker would
have moved and changed residence even if the work was unavailable.
Reasons: The statutory phrase in section 1309(2) that a migratory
move be made ``in order to obtain * * * temporary or seasonal
employment in agricultural or fishing work'' can only mean that the
purpose or intent of the worker in making the move must be to seek or
obtain that work. We are proposing this change to ensure consistency
with the statute and to clarify that a possible contrary interpretation
of this language that was included in non-regulatory guidance for the
MEP that the Department issued prior to its current draft guidance,
issued on October 23, 2003, is inconsistent with the statute. The
former guidance indicated that an SEA could determine that a child
qualified under the MEP if the child or the child's parent, guardian,
or spouse found temporary or seasonal employment in agricultural or
fishing work ``as a result of the move.'' To the extent that this
phrase may imply that the purpose or intent of the worker is
irrelevant, it is inconsistent with the statute. Thus, our proposed
definition of in order to obtain temporary or seasonal employment in
agricultural or fishing work would distinguish between migratory
agricultural workers and migratory fishers who move with the intent of
obtaining temporary or seasonal employment in agricultural work or
fishing work and individuals who move for other purposes but may end up
working as a temporary or seasonal laborer in agriculture or fishing at
a later date.
Migratory Agricultural Worker; Migratory Fisher; Principal Means of
Livelihood
Statute: The statutory definition of migratory child refers to but
does not further define a migratory agricultural worker or a migratory
fisher.
Current Regulations: The current regulations in 34 CFR 200.81(c)
and (e) define the terms migratory agricultural worker and migratory
fisher. In the current definitions, a migratory agricultural worker and
migratory fisher generally mean a person 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
activities as a principal means of livelihood. The current regulations
further define the term principal means of livelihood, in Sec.
200.81(f), to mean that the activity plays an important part in
providing a living for the worker and his or her family.
Proposed Regulations: We propose to remove the parenthetical phrase
``(including dairy work)'' from the definition of migratory
agricultural worker. We also propose to amend the definition of
migratory fisher to clarify that, in the special case of moves in a
school district of more than 15,000 square miles, the migratory fisher
must have moved in order to obtain temporary employment or seasonal
employment in fishing. We propose to continue, with minor editorial
changes, to use the current term (and the associated separate
definition restated in proposed Sec. 200.81(i)), principal means of
livelihood, in the definitions of migratory agricultural worker and
migratory fisher.
Reasons: We are removing the parenthetical ``(including dairy
work)'' from the definition of migratory agricultural worker because it
is redundant in view of the proposed definition of agricultural work,
which includes the production and processing of dairy products. We
propose to clarify that moves within a school district of more than
15,000 square miles must be ``in order to obtain'' temporary or
seasonal employment in fishing work because this is consistent with the
plain meaning of the statutory language in section 1309(2)(c). We
propose to continue to use the term and current definition of principal
means of livelihood in order to continue to clarify that the migratory
work performed by a migratory agricultural worker or a migratory fisher
must be an important part of providing a living to the migratory worker
and his/her family.
Migratory Child
Statute: Section 1309(2) of the statute provides a basic definition
of the term migratory child.
Current Regulations: The term migratory child is defined in Sec.
200.81(d) and is substantially the same as the statutory definition. In
general, a migratory child is defined as a child whose parent is a
migratory agricultural worker or a migratory fisher, and who, in the
preceding 36 months, has moved from one school district to another
because the parent has moved in order to obtain temporary or seasonal
employment in agricultural or fishing work. In addition, the current
definition notes that a migratory child may move on his or her own as
the migratory agricultural worker or migratory fisher (or with a spouse
or guardian who is a migratory agricultural worker or migratory
fisher), and provides special circumstances for moves within (1) a
single-school-district-State and (2) school districts of more than
15,000 square miles.
Proposed Regulations: We propose to revise the organization and
language of the definition of migratory child to make it clearer that a
child may meet the definition if the child is a migratory agricultural
worker or migratory fisher in his or her own right, or by accompanying
or joining a parent, guardian, or spouse who is a migratory
agricultural worker or migratory fisher.
Reasons: We propose revising the definition of migratory child
because, as taken verbatim from the statute, it is convoluted and
confusing. The revised definition seeks to clarify that a child may be
a migratory child by moving either (1) as a migratory agricultural
worker or migratory fisher in his or her own right or (2) as the child
or spouse of such a worker. We also propose to revise the regulation to
clarify what has been a longstanding policy in the program's non-
regulatory guidance: that a migratory child includes both a child who
accompanied the worker and a child who has joined a worker in a
reasonable period of time.
Moved or Move
Statute: The statute does not provide a meaning for the terms moved
or move.
Current Regulations: The current regulations also do not define the
terms moved or move.
Proposed Regulations: We propose adding a definition for the terms
moved or move to specify that either of these
[[Page 25232]]
terms means that a change in residence was made in order for the worker
to obtain temporary or seasonal employment in agricultural or fishing
work. We further propose that this definition not include travel or
moves that occur either (1) during or after a vacation or holiday, or
(2) for other personal reasons unrelated to seeking or obtaining
temporary or seasonal employment in agricultural or fishing work even
if this work is subsequently sought or obtained.
Reasons: While our non-regulatory guidance has for many years
referred to the terms ``moved'' and ``move'' in a similar way, some
States have determined as eligible under the MEP children who simply
returned home from a trip to visit relatives or from a location where
they briefly stayed for other personal reasons. We do not consider
these types of relocations to constitute a move for purposes of
determining eligibility under the MEP because they are not made for the
purpose of obtaining temporary or seasonal employment. This new
definition, therefore, is necessary to make clear that a move under the
MEP would not include travel that occurs as a result of a vacation,
holiday, or for other personal reasons unrelated to obtaining temporary
or seasonal employment in agricultural or fishing work even if such
work is subsequently sought or obtained.
Personal Subsistence
Statute: The ESEA does not define the term personal subsistence for
purposes of the MEP.
Current Regulations: The current regulations also do not provide a
definition of the term personal subsistence although the term is used
in the current definitions of the terms agricultural activity and
fishing activity and the proposed definitions of agricultural work and
fishing work.
Proposed Regulations: We propose adding a definition to clarify
that, in the context of the proposed definitions of agricultural work
or fishing work (which would replace the terms agricultural activity
and fishing activity), personal subsistence means that the worker and
his or her family perform such work in order to consume the crops,
dairy products, or livestock they produce or the fish they catch in
order to survive. This proposed definition of personal subsistence
would not include situations in which a family simply tends a backyard
garden for personal consumption because the produce obtained from such
gardening work, even though consumed by the family, is not necessary in
order for the family to survive.
Reasons: This proposed definition is intended to establish a
consistent standard for all States to use in determining whether
agricultural work or fishing work is performed for personal
subsistence.
Seasonal Employment
Statute: The statute does not define the term seasonal employment.
Current Regulations: The current regulations also do not define
this term.
Proposed Regulations: We propose adding a definition of the term
seasonal employment to mean employment that is dependent on the cycles
of nature (e.g., employment in agricultural work that lasts for a
particular period of time due to specific meteorological or climatic
conditions associated with the cultivation or harvesting of crops).
Reasons: This additional definition is necessary to explain the
meaning of the term seasonal employment as used in the statutory
definition of migratory child. As such, it helps to distinguish between
agricultural or fishing work that is seasonal employment (i.e., which
lasts only for a particular season due to specific meteorological or
climatic conditions) versus agricultural or fishing work that is
temporary employment.
Temporary Employment
Statute: The ESEA does not define the term temporary employment for
purposes of the MEP.
Current Regulations: The current regulations also do not provide a
definition of temporary employment.
Proposed Regulations: We propose adding a definition of the term
temporary employment to specify that this type of employment lasts for
a limited period of time, usually a few months, and does not include
employment that is constant and year-round. The definition includes
examples of situations where employment in agriculture or fishing is
temporary. The definition also clarifies that there are some
circumstances (e.g., livestock processing plant facilities) in which an
employer does not classify the work as temporary and workers may remain
employed indefinitely but, in which, perhaps because of the nature of
the work, the actual employment patterns of workers strongly indicate
that employment in this agricultural or fishing work lasts only for a
limited period of time. In these specific circumstances, we propose
that an SEA may determine these types of employment to be temporary if
it can document through annual surveys (by individual job site) of
workers who move to obtain this work that virtually no workers remain
employed more than 12 months.
Reasons: This proposed definition is intended to establish a
consistent standard (1) applicable to employment in both production and
initial processing activities, and (2) for all States to use in
determining which types of employment in agricultural work and fishing
work are temporary. This proposed definition is also intended to set a
higher standard than we currently have in place in our non-regulatory
guidance--where we have provided that SEAs can deem a job temporary if
an employer certifies that the job has more than a 50 percent turnover
rate in 12 months. We envision that the proposed annual survey of
workers to establish whether or not particular types of work can be
deemed temporary would be included as part of the annual process that
SEAs already conduct to re-establish the continued residency of
previously-identified children over the 3-year window of eligibility.
We believe that the proposed terms ``a few months'' and ``virtually no
workers * * * will remain employed for more than 12 months'' will allow
the SEAS some flexibility to respond to different conditions in
different States and different work sites and avoid setting precise
criteria that may not take into account future changes in agricultural
or fishing work (e.g., longer seasons due to improved farming or
fishing technologies). We do not wish to set arbitrary limits,
especially because it is unclear that one fixed rate would be
appropriate in all situations. For example, there is likely to be more
precision in determining these rates in sites with larger numbers of
workers than in sites with small numbers of workers. This said, we wish
to solicit public comment specifically on whether to retain the
proposed terms ``a few months'' and ``virtually no workers * * * will
remain employed more than 12 months,'' whether those terms create
opportunities for abuse, whether firm time limits and worker numbers or
percentages should and might reasonably be established, and what those
time limits or percentages might be. We also wish to solicit comments
on whether there are additional regulatory requirements relating to the
survey of workers to establish whether particular types of work are
temporary that would: Improve the quality or consistency of the data;
or provide for more efficient methods to collect this data.
[[Page 25233]]
Section 200.83 Responsibilities of SEAs To Implement Projects Through a
Comprehensive Needs Assessment and a Comprehensive State Plan for
Service Delivery
Statute: Under section 1306(a) of the ESEA, each SEA receiving MEP
funds must ensure that it and its operating agencies identify and
address the special educational needs of migratory children in
accordance with a comprehensive needs assessment and service delivery
plan that meets the requirements of that provision. Among other things,
section 1306(a) states that the comprehensive State plan for service
delivery must contain measurable program goals and outcomes.
Current Regulations: Section 200.83 clarifies the statutory
responsibilities of an SEA receiving MEP funds regarding the
development of a comprehensive needs assessment and service delivery
plan. Section 200.83(a)(1) requires the plan to specify the performance
targets ``that the State has adopted for all children in reading and
mathematics achievement, high school graduation, and the number of
school dropouts, as well as the State's performance targets, if any,
for school readiness,'' as well as ``[a]ny other performance targets
that the State has identified for migratory children.'' However, the
regulation does not reference the need for the plan to specify
measurable outcomes related to those performance targets.
Proposed Regulations: We propose to revise Sec. 200.83 to clarify
that the SEA's comprehensive needs assessment and plan for service
delivery must also include the measurable outcomes that the State's MEP
will produce for migratory children in relation to--
(1) The performance targets the State has adopted for all children
in reading and mathematics achievement, high school graduation, and the
number of school dropouts, as well as, if any, for children
participating in school readiness programs, and
(2) Any other performance targets it has adopted for migratory
children.
Reasons: When the Department issued Sec. 200.83, it failed to
include one of the statutory requirements for a needs assessment and
service delivery plan, i.e., measurable outcomes. Unfortunately, a
number of States appear to have assumed that the requirements contained
in Sec. 200.83 were exhaustive. The proposed change, therefore, would
simply clarify in the regulations what the statute already requires--
that an SEA's comprehensive plan must include both the specific
performance targets (i.e., goals) it has established in keeping with
the statute and its measurable outcomes relative to those targets.
Section 200.89(a) Allocation of Funds Under the MEP for Fiscal Year
(FY) 2006 and Subsequent Years
Statute: Section 1303(a)(2) and (b) of the ESEA establishes a
formula for State MEP allocations for FY 2003 and subsequent years
under which each State receives the ``base amount'' awarded to it for
FY 2002 and a share of any additional funds that Congress appropriates
for the MEP over the level of the MEP's FY 2002 appropriations. Both
the base amount and the amount of additional funds each State is
entitled to receive are derived in part from State-submitted counts of
eligible migratory children. In addition, section 1303(c)(1) directs
the Secretary to reduce ratably the amount of State awards to reflect
the actual amount Congress appropriates for the MEP in any fiscal year.
Section 1303(c)(2) permits the Secretary to further reduce a State's
MEP allocation if the Secretary determines, based on available
information on the numbers and needs of eligible migratory children in
the State and the State's program to address those needs, that the
amount that would be awarded exceeds the amount the State needs.
Section 1303(e)(1) also directs the Secretary to use such
information as most accurately reflects the actual number of migratory
children in a State in calculating the amount of State MEP allocations.
Finally, section 1304(c)(7) requires each SEA to provide an assurance
in its application for funds that it will assist the Secretary, through
such procedures as the Secretary requires, in determining the eligible
numbers of migratory children in the State for purposes of making State
MEP allocations.
Current Regulations: The current regulations do not address State
MEP allocations and the formula used to calculate those allocations.
Proposed Regulations: Proposed Sec. 200.89(a) would 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 children, and thereby determine the base amount of a State's
MEP award for FY 2006 and subsequent years. The proposed regulation
would also require, as a condition to an SEA's receipt of its final FY
2006 and subsequent-year MEP awards, thorough re-documentation of the
eligibility of all children (and the removal of all ineligible
children) included in an SEA's 2006-2007 MEP child counts.
Reasons: We know, as a result of the voluntary re-interviewing
initiative and OIG's findings, that many of the State migratory child
counts that were submitted to the Department for 2003-2004 were
inaccurate to some degree. As further discussed in this preamble, we
believe that there is significant reason to believe that comparable
inaccuracies affect the SEAs' 2000-2001 counts of migratory children as
well. Hence, we also believe that to continue to base MEP allocations
on those 2000-2001 counts would be contrary to the statutory
requirement that the Secretary award funds on the basis of ``such
information as the Secretary finds most accurately reflects the actual
number of migratory children'' in each State.
Section 1303(a) of the ESEA provides that MEP allocations for FY
2003 and beyond are to be based in part on the States' counts for 2000-
2001 of the following: (1) All migratory children residing in their
States during that year, and (2) all migratory children who
participated in MEP summer and intersession programs during that year.
It is inconceivable however that, in enacting section 1303(a), Congress
intended the Department to continue to use the FY 2002 MEP State
allocations amounts to make subsequent years' awards if the underlying
State counts of eligible migratory children that supported the FY 2002
allocation determinations were inaccurate. Congress also provided in
section 1304(c)(7) of the ESEA that States would have continuing
responsibility to ``assist the Secretary in determining the number of
migratory children [used in calculating State MEP allocations] through
such procedures as the Secretary may require.'' The Department annually
provides instructions to the SEAs regarding the submission of accurate
counts of migratory children in the ``Migrant Child Count Report for
State Formula Grant Migrant Education Programs under the [ESEA]'' (OMB
No. 1810-0519), and, by receipt of MEP funding through consolidated
State applications submitted under section 9302 of the ESEA, each SEA
provides an assurance to ``adopt and use proper methods of
administering each such program, including the enforcement of any
obligations imposed by law. * * *'' Given these related requirements,
the responsibility of SEAs under section 1304(c)(7) of the ESEA to
assist the Secretary in determining the number of migratory children
clearly includes a responsibility to correct any originally submitted
child counts that were inaccurate.
Therefore, we believe that, to make the appropriate allocations for
FY 2006 and subsequent years consistent with the statute, the
Department must re-
[[Page 25234]]
determine each SEA's FY 2002 base allocation amount by applying the
defect rate accepted by the Department to the SEA's 2000-2001 child
counts, and then use the adjusted base allocation amounts to calculate
the allocations for FY 2006 and subsequent years.
When the Department began the re-interviewing initiative, it
acknowledged that, because of the passage of time, States could face
significant challenges in locating all of the children within their
random sample of children counted in 2000-2001 for the purposes of
conducting the needed re-interviews. For this reason, the Department
gave participating States the option of conducting re-interviews for a
random sample of children identified either (a) in 2000-2001, or (2) in
2003-2004, in which case the Department would apply the defect rate for
that year to the State's reported 2000-2001 child counts.
We have no reason to believe that the defect rates States have
reported for 2003-2004 would have been significantly different had
States been able to conduct eligibility re-interviews of children they
had identified as eligible for the MEP in 2000-2001. Indeed, for defect
rates of children identified as eligible in 2000-2001 to be lower than
those reported for 2003-2004, one would have to assume that State
procedures for identifying eligible migratory children deteriorated
between 2000-2001 and the time States conducted their re-interviews of
children in their 2003-2004 migratory child counts. Given the major
emphasis the Department has placed in recent years on improved
migratory child eligibility decisions, we believe that State procedures
for identifying eligible migratory children should have improved since
2000-2001.
Proposed Sec. 200.89(a) notes that the Department would use State
defect rates ``that the Secretary accepts'' for adjusting the 2000-2001
counts of eligible children, and thereby determine the base amount of a
State's MEP award for FY 2006 and subsequent years. To determine that
the reported defect rates are acceptable, the Department will review
how each State determined its defect rate. To the extent that a defect
rate is determined from the review not to be acceptable, a State would
be required under proposed Sec. 200.89(b) to conduct further re-
interviewing. We consider it necessary to conduct this review to
determine the acceptability of reported defect rates, and perhaps
require additional re-interviewing, because States did not use
identical methodologies in determining their defect rates.
We acknowledge that the State defect rates the Secretary ultimately
accepts will not perfectly correct for errors in the 2000-2001
migratory child counts that States previously reported. However, we
firmly believe that their use will enable the Department to distribute
MEP funds for FY 2006 and subsequent years in a way that much better
reflects the ESEA statutory formula and congressional intent than would
the continued use of the original and inaccurate 2000-2001 child
counts.
Finally, proposed Sec. 200.89(a)(2) requires re-documentation of
the eligibility of all children (and the removal of all ineligible
children) as a condition to SEA receipt of final FY 2006 and
subsequent-year MEP awards. From a practical standpoint, we expect that
this re-documentation effort can be completed as an SEA carries out its
annual activities relative to examining whether children previously
identified as eligible in a prior performance year (and who have
eligibility under the statutory definition for 36 months) are still
resident and can be counted and served as eligible under the program.
We would expect SEAs to carefully examine the underlying eligibility of
all previously-identified migratory children relative to the types of
problems identified during the retrospective re-interviewing as causing
defective eligibility determinations. We propose this re-documentation
effort in order to ensure that only eligible migratory children receive
MEP funded services and are included in an SEA's 2006-2007 MEP child
counts.
Section 200.89(b) Responsibilities of SEAs for Re-Interviewing To
Ensure the Eligibility of Children Under the MEP
Statute: Section 1309(2) of the ESEA provides the definition of a
migratory child that States must use to determine eligibility for MEP
services. Section 1304(c)(7) requires that SEAs assist the Secretary,
through such procedures as the Secretary requires, in determining the
eligible numbers of migratory children in the State.
Current Regulations: The current regulations do not require States
to conduct re-interviewing to ensure eligibility of children under the
MEP.
Proposed Regulations: Proposed Sec. 200.89(b) would require SEAs
to conduct retrospective and prospective re-interviewing of children to
confirm their eligibility. Retrospective re-interviewing would be
required for those SEAs that have either (1) not conducted a re-
interviewing process on a statewide random sample of identified
migratory children and submitted a defect rate to the Secretary, or (2)
submitted a defect rate that the Secretary does not accept. The
proposed regulations identify minimum requirements for retrospective
re-interviewing as well as the minimum content of the report that these
States would need to submit to the Secretary on the defect rate and re-
interviewing process.
Prospective re-interviewing would be required of all SEAs annually
in order to provide an improved quality-control check on the accuracy
of their current eligibility determinations and to guide any needed
corrective actions or improvements in a State's migratory child
identification and recruitment practices.
Reasons: Nearly all SEAs voluntarily re-interviewed a random sample
of their identified migratory children and submitted a defect rate to
the Department. However, a few did not. As a matter of fairness, and to
ensure that the procedures the Department would use to calculate the
final amount of each State's MEP award for FY 2006 and subsequent years
reflect defect rates that the Secretary accepts for all States, the
Secretary proposes to require that those last few States conduct
retrospective re-interviewing. The proposed regulations require the
retrospective re-interviewing to be completed within six months of the
effective date of these regulations by those SEAs that did not conduct
a retrospective re-interviewing process on a voluntary basis. We
believe requiring completion of retrospective re-interviewing within
six months of the effective date of the regulations is appropriate
based on our analysis of the amounts of time needed by SEAs who
conducted the re-interviewing process voluntarily.
The minimum elements of both the retrospective re-interviewing
process and the report to the Secretary are included in proposed Sec.
200.89(b) in order to clarify the procedures the Secretary expects
States will use to determine and report a defect rate, and that the
Secretary will review in assessing whether the reported defect rate is
acceptable in order to adjust the base amounts of the FY 2006 and
subsequent year MEP allocations. As set forth in the regulations, the
minimum elements of retrospective re-interviewing would include: use of
a statewide random sample (at a 95 percent confidence level with a
confidence interval of plus or minus 5 percent); use of independent re-
interviewers; and 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-
[[Page 25235]]
interviewed. The minimum elements for reporting on retrospective re-
interviewing would include: An explanation of the sample and the re-
interview procedures, and the findings and corrective actions, as well
as an acknowledgement that the defect rate can be used to adjust the
2000-01 child counts previously submitted by the State and used to
determine the FY 2002 base year allocations.
To date, the Department has addressed various elements of quality
control in non-regulatory guidance. However, since the counts of
migratory children the States have reported have been found to include
children ineligible for the program, we believe that it is necessary to
require through regulations some minimum requirements for a State's
quality-control system. (In this regard see the further discussion
regarding proposed Sec. 200.89(d).) In particular, we now propose that
all States be required to conduct a process of prospective re-
interviewing to ensure that State migratory child counts are not again
affected by improper eligibility determinations. As described in
proposed Sec. 200.89(b)(2), prospective re-interviewing would include,
as part of a State's system of quality controls, the face-to-face re-
interviewing of a sufficient sample of identified migratory children
(selected randomly on a statewide basis or within relevant strata) so
as to enable the State to annually assess the level of accuracy of its
eligibility determinations, uncover eligibility problems, and improve
the accuracy of their child count determinations.
It should be noted that while the regulation proposes that
retrospective re-interviewing be based on a statewide random sample (at
a 95 percent confidence level with a confidence interval of plus or
minus 5 percent), the regulation also proposes that prospective re-
interviewing be based on a sufficient sample of identified migratory
children. This is the case since the defect rate to be calculated from
the retrospective re-interviewing sample must be able to be generalized
to the State's entire population of identified migratory children,
while, for prospective re-interviewing, the sample to be re-interviewed
must only be of sufficient size and scope to enable the prospective re-
interviewing process to serve as an adequate early warning system of
developing eligibility problems. The samples for prospective re-
interviewing can be selected randomly on a statewide basis or within
relevant strata; the Department plans to provide updated guidance
concurrent with the issuance of the final rule providing instruction on
how to appropriately conduct sampling to satisfy this requirement.
The regulation proposes prospective re-interviewing on an annual
basis. As discussed in the Paperwork Reduction Act submission to OMB,
we expect that SEAs will need to prospectively re-interview no more
than 100 families (on average) and that the burden would amount to less
than 8,700 person-hours annually. However, the Department remains
interested in the additional burden that mandatory prospective re-
interviewing would impose and, therefore, requests comments on whether
prospective re-interviewing on a different interval (e.g., biannually)
would continue to be effective and efficient, while still retaining the
program integrity goals outlined here.
The proposed regulation would also require each SEA to implement
needed corrective actions or improvements, including corrective actions
required by the Secretary, in order to address any problems identified
through prospective re-interviewing with child eligibility
determinations.
Section 200.89(c) Responsibilities of SEAs To Document the Eligibility
of Migratory Children
Statute: Section 1309(2) of the ESEA provides the definition of a
migratory child that each SEA must use to determine eligibility of a
migratory child. Except for the very limited exceptions specified in
section 1304(e) of the ESEA that govern continuity of MEP services to
children whose eligibility has terminated, sections 1302 and 1304(a)
require SEAs to provide MEP services only to eligible migratory
children.
Current Regulations: While Sec. 76.731 of the Education Department
General Administrative Regulations (EDGAR) [34 CFR 76.731] requires
SEAs to keep records to show their compliance with program
requirements, the current MEP regulations do not specify a standard
procedure for SEAs to document a child's eligibility under the MEP.
Proposed Regulations: Proposed Sec. 200.89(c) would require that
all SEAs and local operating agencies use a standard, national
Certificate of Eligibility (COE) developed and promulgated by the
Department to record and certify the accuracy of basic information
documenting the eligibility of a migratory child. One COE would be
completed per family per qualifying move and include basic information
on each eligible child (e.g., name, age, grade). Proposed Sec.
200.89(c) also identifies the SEA (i.e., the MEP grantee) as the
responsible entity for all eligibility determinations, and would
require an SEA to collect additional documentation on the child beyond
that contained on the COE, as may be necessary to confirm a child's MEP
eligibility.
Reasons: The Secretary proposes to require use of a standard COE on
which all SEAs would record the minimum information necessary to
confirm migratory child eligibility because she believes that use of a
more systematic national procedure is needed to help ensure that
acceptable documentation exists for all children in the Nation who are
found eligible for the MEP. Under section 9304(a)(1) of the ESEA, each
SEA that receives MEP funds already must provide an assurance that it
will administer all ESEA programs in accordance with applicable
statutes and regulations, and section 1302 of the ESEA places
responsibility on these SEAs to use their MEP funds, either directly or
through local operating agencies, to establish or improve education
programs ``for migratory children in accordance with [Title I, Part C
of the ESEA].'' In addition, section 80.40 of EDGAR provides that each
SEA is ``responsible for managing the day-to-day operations of grant
and subgrant supported activities,'' and for ``monitor[ing] grant and
subgrant supported activities to assure compliance with applicable
Federal requirements.'' Despite these requirements, given that
incorrect eligibility determinations have been a pervasive problem in
many States, we believe further regulation is necessary to avoid any
uncertainty about an SEA's responsibility for all MEP eligibility
determinations in the State--whether made directly by the SEA, or by
its local operating agencies, subgrantees, or contractors.
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
Statute: Section 9304(a)(6) of the ESEA requires each SEA to
provide an assurance that it will ``maintain such records * * * as the
Secretary may find necessary to carry out the Secretary's duties,''
which would include the duty to collect the most accurate unduplicated
counts possible of migratory children that each State had identified.
However, the ESEA does not address the need of each SEA to maintain a
system of quality controls designed to ensure the accuracy of child
eligibility determinations under the MEP.
[[Page 25236]]
Current Regulations: Current MEP regulations do not address a
system of quality controls that all SEAs must have in place to ensure
the accuracy of eligibility determinations.
Proposed Regulations: Proposed Sec. 200.89(d) would establish
minimum requirements for a system of quality controls that all SEAs
would need to implement to ensure accurate child eligibility
determinations.
Reasons: Section 76.731 of EDGAR requires each SEA and subgrantee
to ``keep records to show its compliance with program requirements.''
However, as with section 9403 of the ESEA, it does not identify the
steps SEAs need to take to ensure that their records are accurate.
Generally, further regulations of this kind are not necessary. The
program statutes and regulations, the cost principles contained in
Office of Management and Budget circulars, as well as generally
accepted audit standards, usually provide sufficiently clear
instructions. Indeed for many years, the Department has treated quality
control as a matter simply to be addressed in successive revisions of
non-regulatory guidance issued for the MEP.
However, the findings of pervasive problems with prior eligibility
determinations underscore that more is needed with regard to
documentation of the correctness of determinations on migratory child
eligibility. While the proposed regulations on prospective re-
interviewing in Sec. 200.89(b), if finalized, would be an important
step to help confirm, after the fact, whether eligibility
determinations have been correctly made, it would not be a substitute
for front-end, process-oriented quality controls to make sure those
determinations are made correctly at the beginning of the process.
Consequently, the Secretary proposes the requirements in Sec.
200.89(d) to establish a clear set of both front-end, process-oriented
quality controls and after-the-fact, product-oriented quality controls
that SEAs and their local operating agencies or contractors would be
required to use to improve and ensure the accuracy of child eligibility
determinations for the MEP. The Department has for years included many
of these elements in successive versions of non-regulatory guidance it
has issued for the MEP. However, it is possible that because the
Department has treated this matter as deserving only of guidance, some
SEAs may have de-emphasized the pivotal importance of sound quality
control procedures. Establishing such procedures now as a regulatory
requirement governing an SEA's receipt and expenditure of MEP funds
will help to ensure that SEAs examine whether or not they are
adequately addressing some of the factors--such as poor or infrequent
recruiter training and supervision, and lack of substantive review of
COEs--that the national re-interviewing initiative and OIG have
identified as contributing to the prevalence of incorrect eligibility
determinations.
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 the 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.
1. Potential Costs and Benefits
Under Executive Order 12866, we have assessed the potential costs
and benefits of this regulatory action.
The potential costs associated with the proposed regulations are
those resulting from statutory requirements and those we have
determined to be necessary for administering this program effectively
and efficiently. Elsewhere in this SUPPLEMENTARY INFORMATION section we
identify and explain burdens specifically associated with information
collection requirements. See the heading Paperwork Reduction Act of
1995.
In assessing the potential costs and benefits--both quantitative
and qualitative--of this regulatory action, we have determined that the
benefits would justify the costs.
We have also determined that this regulatory action would not
unduly interfere with State, local, and tribal governments in the
exercise of their governmental functions.
Summary of Potential Costs and Benefits
These proposed 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 the Secretary proposes to issue through this notice would
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;
Re-interviewing samples of students [Sec. 200.89(b)] will
cost approximately $220,000 annually;
Documenting the eligibility of migratory children,
including the use of a standard COE [Sec. 200.89(c)] will cost
approximately $2.8 million annually; and
Institution of specific quality control procedures [Sec.
200.89(d)] will cost approximately $1.5 million annually.
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.
The proposed 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 proposed regulations will add
significantly to the consistency of eligibility determinations by
standardizing the eligibility determination process nationally. The
Department believes the activities required by the proposed regulations
will be financed through the
[[Page 25237]]
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 proposed regulations will help maintain public confidence in
the program and ensure its continued operational integrity. As
discussed elsewhere in this notice, Department analyses have shown
that, on average, close to 10 percent of the children identified by
SEAs as eligible for services for school year 2003-04 did not meet the
statutory eligibility criteria. The proposed regulations will 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 10 percent of currently participating children being determined
ineligible, then some $38 million annually (10 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,\1\ 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.
---------------------------------------------------------------------------
\1\ 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.
2. Clarity of the Regulations
Executive Order 12866 and the Presidential memorandum on ``Plain
Language in Government Writing'' require each agency to write
regulations that are easy to understand.
The Secretary invites comments on how to make these proposed
regulations easier to understand, including answers to questions such
as the following:
Are the requirements in the proposed regulations clearly
stated?
Do the proposed regulations contain technical terms or
other wording that interferes with their clarity?
Does the format of the proposed regulations (grouping and
order of sections, use of headings, paragraphing, etc.) aid or reduce
their clarity?
Would the proposed regulations be easier to understand if
we divided them into more (but shorter) sections? (A ``section'' is
preceded by the symbol ``Sec. '' and a numbered heading; for example,
Sec. 200.81 Program Definitions.)
Could the description of the proposed regulations in the
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in
making the proposed regulations easier to understand? If so, how?
What else could we do to make the proposed regulations
easier to understand?
To send any comments that concern how the Department could make
these proposed regulations easier to understand, see the instructions
in the ADDRESSES section of the preamble.
Regulatory Flexibility Act Certification
The Secretary certifies that these proposed regulations would not
have a significant economic impact on a substantial number of small
entities because these proposed regulations affect SEAs primarily. SEAs
are not defined as ``small entities'' in the Regulatory Flexibility
Act. The only small entities that could be subject to the proposed
regulations would be small local educational agencies that receive MEP
sub-grants from the SEA to act as ``local operating agencies'' under
the MEP. In the case of these entities, as local operating agencies,
they could be required to identify eligible migratory children;
however, the costs of doing so would be financed through the State
Title I, Part C MEP appropriation and would not impose a financial
burden that a small entity would have to meet from non-Federal
resources.
Paperwork Reduction Act of 1995
The proposed 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 ``Migrant
add measurable Education Program
program outcomes (MEP) Regulations
into the and Certificate
comprehensive MEP of Eligibility
State plan for (COE).'' OMB No.
service delivery. 1910-0662.
Sec. 200.89(b)(1)............. Requires States to ``Migrant
conduct Education Program
retrospective re- (MEP) Regulations
interviewing. and Certificate
of Eligibility
(COE).'' OMB No.
1910-0662.
Sec. 200.89(b)(2)............. Requires States to ``Migrant
conduct Education Program
retrospective re- (MEP) Regulations
interviewing. and Certificate
of Eligibility
(COE).'' OMB No.
1910-0662.
[[Page 25238]]
Sec. 200.89(c)................ Requires States to ``Migrant
document the Education Program
eligibility of (MEP) Regulations
migratory and Certificate
children. of Eligibility
(COE).'' OMB No.
1910-0662.
Sec. 200.89(d)................ Requires SEAs to ``Migrant
establish a Education Program
system of quality (MEP) Regulations
controls. and Certificate
of Eligibility
(COE).'' OMB No.
1910-0662.
------------------------------------------------------------------------
Respondents to this collection consist of State or local
educational agencies. 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 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.
If you want to comment on the information collection requirements,
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
ADDRESSES 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. This does not affect the deadline for your comments to us
on the proposed regulations.
Intergovernmental Review
This program is subject to Executive Order 12372 and the
regulations in 34 CFR part 79. One of the objectives of the Executive
order is to foster an intergovernmental partnership and a strengthened
federalism. The Executive order relies on processes developed by State
and local governments for coordination and review of proposed Federal
financial assistance.
This document provides early notification of our specific plans and
actions for this program.
Federalism
Executive Order 13132 requires us to ensure meaningful and timely
input by State and local elected officials in the development of
regulatory policies that have federalism implications. ``Federalism
implications'' means substantial direct effects on the States, on the
relationship between the National Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. The proposed regulations in Sec. Sec. 200.81 through
200.89 may have federalism implications, as defined in Executive Order
13132, in that they will have some effect on the States and the
operation of their State MEPs. It should be noted that several major
components of the proposed regulations--i.e., the need for all SEAs to
complete the retrospective re-interviewing and the need for more and
clearer eligibility definitions--were proposed to the Department by
various State and local MEP staff in numerous public meetings over the
last several years. We encourage State and local elected officials to
review and provide comments on these proposed regulations. To
facilitate review and comment by appropriate State and local officials,
the Department will, aside from publication in the Federal Register,
post the NPRM to our MEP Web site and to the Office of Elementary and
Secondary Education (OESE) Web site; make a specific email posting via
a special listserv that is sent to each MEP State Director; and make a
special posting to a more general MEP listserv that is accessed by
State and local MEP staff other than State Directors.
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
[[Page 25239]]
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: May 1, 2007.
Kerri L. Briggs,
Acting Assistant Secretary, for Elementary and Secondary Education.
For the reasons discussed in the preamble, the Secretary proposes
to amend part 200 of title 34 of the Code of Federal Regulations as
follows:
PART 200--TITLE I--IMPROVING THE ACADEMIC ACHIEVEMENT OF THE
DISADVANTAGED
1. The authority citation for part 200 continues to read as
follows:
Authority: 20 U.S.C 6301 through 6578, unless otherwise noted.
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
generally for wages or in rare cases 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 generally for wages or in rare
cases personal subsistence.
(c) In order to obtain, when used to describe the purpose of a
move, means that one of the purposes of the move is to seek or obtain
temporary employment or seasonal employment in agricultural work or
fishing work. 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.
(d) Migratory agricultural worker means a person who, in the
preceding 36 months, has moved 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 where the
temporary employment or seasonal employment is a principal means of
livelihood.
(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 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 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 where the temporary employment or
seasonal employment is a principal means of livelihood. 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 a distance
of 20 miles or more to a temporary residence in order to obtain
temporary employment or seasonal employment in fishing work where the
temporary employment or seasonal employment is a principal means of
livelihood.
(g) Moved or Move means that a change from one residence to another
residence was made in order to obtain temporary employment or seasonal
employment in agricultural work or fishing work. This definition does
not include travel or moves that occur during or after a vacation or
holiday, or for other personal reasons unrelated to seeking or
obtaining temporary employment or seasonal employment in agricultural
work or fishing work even if this work is subsequently sought or
obtained.
(h) Personal subsistence means that the worker and his or her
family perform such work in order to consume the crops, dairy products,
or livestock they produce or the fish they catch in order to survive.
(i) Principal means of livelihood means that temporary employment
or seasonal employment in agricultural work or fishing work plays an
important part in providing a living for the worker and his or her
family.
(j) Seasonal employment means employment that is dependent on the
cycles of nature due to the specific meteorological or climatic
conditions.
(k) Temporary employment means employment that lasts for a limited
period of time, usually a few months.
(1) For example, it includes employment where:
(i) The employer hires the worker for a limited time frame (e.g.,
for a three-month period). For example, a poultry processing plant
hires extra workers during the months of September, October, and
November to handle the increase in turkey production before
Thanksgiving. In this example, an employer hires temporary workers
during a period of peak demand.
(ii) The employer hires the worker to perform a task that has a
clearly defined beginning and end (e.g., digging an irrigation ditch or
building a fence) and is not one of a series of activities that is
typical of permanent employment.
(iii) The worker does not intend to remain employed indefinitely
(e.g., the worker states that he plans to leave the job after four
months).
(2) It does not include employment that is constant and year-round,
except that an SEA may deem specific types of employment to be
temporary if it 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 (e.g., they usually remain employed for
only a few months), even though the work may be available on a year-
round basis. Such surveys must be conducted separately for each
employer and job site (i.e., each farm or processing plant).
(Authority: 20 U.S.C. 6391-6399, 6571)
3. Amend Sec. 200.83 as follows:
a. Redesignate paragraphs (a)(3) and (a)(4) as paragraphs (a)(4)
and (a)(5), respectively, and add a new paragraph (a)(3).
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) * * *
[[Page 25240]]
(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--
* * * * *
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
awards for each SEA for FY 2006 and subsequent years, 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 re-interviewing process that the SEA has
conducted.
(2) The Secretary conditions an SEA's receipt of final FY 2006 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 2006-2007 MEP child
counts.
(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 and submit a
defect rate accepted by the Secretary under Sec. 200.89(a) must,
within six months of the effective date of these regulations, or as
subsequently required by the Secretary under paragraph (b)(2)(vii) of
this section--
(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 will adjust the child counts for 2000-2001 and subsequent
years 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 strata 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 extraordinary circumstances make
face-to-face re-interviews impractical and necessitate the use of an
alternative method of 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 required by the Secretary, including retrospective
re-interviewing.
(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 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.
(3) An SEA is responsible for the accuracy of all the
determinations of the eligibility of migratory children identified in
the State.
[[Page 25241]]
(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 transmitting responses to all
local operating agencies in written form.
(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 Sec. 200.89(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 audit findings and recommendations.
(Authority: 20 U.S.C. 6391-6399, 6571, 7844(d); 18 U.S.C. 1001)
[FR Doc. E7-8580 Filed 5-3-07; 8:45 am]
BILLING CODE 4000-01-P