[Federal Register: June 11, 2003 (Volume 68, Number 112)]
[Notices]
[Page 34911-34913]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11jn03-60]
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DEPARTMENT OF EDUCATION
Migrant Education Formula Grant Program
AGENCY: Office of Elementary and Secondary Education, Department of
Education.
ACTION: Notice of interpretation.
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SUMMARY: The Department announces interpretations of section 1303(a)
and (b) of the Elementary and Secondary Education Act, as amended by
the No Child Left Behind Act of 2001, under which the Department
establishes rules for allocating Migrant Education Program funds to
States, the District of Columbia, and the Commonwealth of Puerto Rico
for Fiscal Year (FY) 2003.
DATES: Effective date: June 11, 2003.
FOR FURTHER INFORMATION CONTACT: James English, Office of Migrant
Education, U.S. Department of Education, 400 Maryland Avenue, SW., Room
3E315, FOB-6, Washington, DC 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 Information Relay Service (FIRS) 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:
Background
The Migrant Education Program (MEP), authorized in Title I, Part C,
of the Elementary and Secondary Education Act of 1965 (ESEA), as
amended by the No Child Left Behind Act of 2001 (NCLB), is a State-
operated and State-administered formula grant program. It provides
assistance to State educational agencies (SEAs) to support high-quality
and comprehensive educational programs that provide migratory children
appropriate educational and supportive services that address their
special needs in a coordinated and efficient manner, and give migratory
children the opportunity to meet the same challenging State academic
content and student academic achievement standards that all children
are expected to meet.
Through this notice, we clarify our interpretations of the formula
for awarding FY 2003 MEP funds to States, including the District of
Columbia and the Commonwealth of Puerto Rico (Puerto Rico). Under these
interpretations, because the overall amount of MEP funds available for
allocation to States (including the District of Columbia and Puerto
Rico) in FY 2003 will be equal to the amount allocated in FY 2002, the
MEP formula amounts to be awarded to each State (including the District
of Columbia and Puerto Rico) for FY 2003 will be equal to the amounts
awarded to each in FY 2002.
The State Formula. Section 1303(a) and (b) of the ESEA provides the
statutory formula under which the Department awards MEP funds to
States, including the District of Columbia and Puerto Rico. Section
1303(a)(1) provides a formula for the distribution of FY 2002 MEP funds
to all States ``other than the Commonwealth of Puerto Rico.'' This
formula relies upon an estimate of the full-time-equivalent (FTE)
number of migrant children in each State multiplied by ``40 percent of
the average per-pupil expenditure in the State, except that the amount
determined under this paragraph shall not be less than 32 percent, nor
more than 48 percent, of the average per-pupil expenditure in the
United States.''
Section 1303(a)(2) also stipulates that, except as provided under
sections 1303(a)(2)(ii) and (b), the amount that each State ``other
than the Commonwealth of Puerto Rico'' is entitled to receive in FY
2003 and subsequent years is the sum of--
1. The amount of MEP funds the State received for FY 2002, and
2. The amount (of those funds, if any, that may be appropriated for
any subsequent fiscal year in excess of the FY 2002 appropriation
level) determined by multiplying the sum of (i) the number of
identified eligible migratory children, aged 3 through 21, who during
the prior year resided in the State, and (ii) the number of such
children who received MEP services in a State summer or intersession
program, by 40 percent of the average per-pupil expenditure in the
State, except that the amount so determined may not be less than 32
percent, or more than 48 percent, of the average per-pupil expenditure
in the United States.
For Puerto Rico, section 1303(b)(1) provides that each year the
Commonwealth is entitled to receive an award in the amount ``determined
by multiplying the number of children who would be counted under
subsection (a)(1)(A) if such subsection applied to the Commonwealth of
Puerto Rico by the product of--
(A) the percentage that the average per-pupil expenditure in the
Commonwealth of Puerto Rico is of the lowest average per-pupil
expenditure of any of the 50 States; and
(B) 32 percent of the average per-pupil expenditure in the United
States.''
In addition, section 1303(b)(2) provides an increasing minimum
percentage to be used in paragraph (b)(1)(A) for FYs 2002 through 2005
and succeeding years. This amount is 77.5 percent for FY 2002, 80
percent for FY 2003, 82.5 percent for FY 2004, and 85 percent for FYs
2005 and beyond.
Section 1303(b)(3) provides that, if application of paragraph
(b)(2) for any fiscal year would cause any State to receive less than
it received for the preceding fiscal year, the percentage described in
paragraph (b)(1)(A) used for Puerto Rico's allocation for that fiscal
year is to be the greater of the actual percentage in paragraph
(b)(1)(A) for that fiscal year or the percentage used for the preceding
fiscal year.
Finally, section 1303(c) of the ESEA requires the Department to
ratably reduce MEP grant awards made to all States (including Puerto
Rico) if ``the amount appropriated for these grants is insufficient to
pay in full the amounts for which all States are eligible.''
FY 2002 MEP Awards. The amended ESEA established very clear
procedures for determining the amount of FY 2002 MEP funds the
Department provided to each State, including Puerto Rico. It required
the Department to provide to all States (section 1303(b)(1)(A)) and to
Puerto Rico (section 1303(b)(1)) an FY 2002 award derived by
multiplying the total of the State's FTE count of migratory children by
the appropriate per-pupil-expenditure amount identified in section
1303(a)(1)(B) and 1303(b)(1)(A) and (2), respectively. As the FY 2002
appropriation was insufficient to make awards to all States and Puerto
Rico in these amounts, the Department then applied the ratable
reduction provision in section
[[Page 34912]]
1303(c)(1) to determine the actual size of the FY 2002 MEP grant
awards.
FY 2003 MEP Awards. Section 1303 is far less clear about how the
Department is to determine the size of FY 2003 MEP allocations for all
States (including Puerto Rico). Because the amount available for FY
2003 awards is no greater than the amount that was available for FY
2002 MEP awards, section 1303(a)(2)(A)(i)(I) provides that, except as
is required by section 1303(b) to allocate funds to Puerto Rico, each
State other than Puerto Rico is generally entitled to receive the
amount of MEP funds that the State received for FY 2002.
At the same time, section 1303(b) fails to establish a clear and
consistent method to calculate Puerto Rico's allocation for FY 2003.
Section 1303(b)(1) and (b)(2) seems to establish an entitlement for
Puerto Rico based on multiplying an FTE count described in section
1303(a)(1)(A) and an adjusted State per-pupil expenditure (SPPE) amount
determined by sections (b)(1)-(3). However, the law is unclear as to
whether the FTE data and/or the SPPE data in question should be frozen
at the FY 2002 level or adjusted annually. In addition, it is unclear
as to whether any of these options make sense in light of the fact that
NCLB changed the funding formula for all other States starting in FY
2003, specifically to move toward use of more accurate and less
burdensome actual counts of migrant children and away from the outdated
FTE counts. [Note: The FTE counts are outdated because they are
calculated using adjustment factors that are based on State data
collected in 1994.]
Regardless of how Puerto Rico's entitlement is calculated, it is
also unclear how to apply the ratable reduction in section 1303(c)(2)
consistently across all States and Puerto Rico when, as in FY 2003, the
appropriation falls short of the entitlements for all States and Puerto
Rico. Section 1303(a)(2) provides that, in general, the entitlement for
all States but Puerto Rico is their actual FY 2002 award amounts, which
already went through a ratable reduction in FY 2002. However, under
section 1303(b), Puerto Rico's FY 2003 entitlement is not tied to its
actual FY 2002 award amount and, thus, never went through an initial
ratable reduction in FY 2002. The process of calculating Puerto Rico's
FY 2003 entitlement amount, therefore, is inconsistent with the process
for calculating the entitlements for all the other States. If the
ratable reduction in section 1303(c) is then applied to all States and
Puerto Rico in the same manner, the amount Puerto Rico would be
entitled to receive for FY 2003 would be the amount it would have been
entitled to receive in FY 2002 had there been no ratable reduction,
increased by a 2.5 percent reduction in the gap between its SPPE and
the lowest SPPE of any of the 50 States. This would mean that the FY
2003 allocations for all States but Puerto Rico would be affected by
two ratable reductions from the amount of FY 2002 MEP funds to which
they otherwise would have been entitled--one for FY 2002 and another
for FY 2003--while Puerto Rico's FY 2003 allocation would be affected
by a ratable reduction only for FY 2003. However, interpreting the
statute this way would result in a substantial increase in the amount
of FY 2003 MEP funds that Puerto Rico would receive, at the expense of
the other States.
These kinds of anomalies, however, are not necessary. In
particular, one also can interpret sections 1303(b)(1) and 1303(a)(2)
to mean that, for FY 2003 and subsequent years, the amount of MEP funds
for which Puerto Rico and every other State may apply is to be based on
the same State migrant FTE counts--and hence the same ratable-reduction
factor--that the Department applied when it calculated the FY 2002 MEP
awards. Such an interpretation of the MEP statutory formula seems to
make the most sense programmatically, and to comport best with what we
believe is Congress' intent.
There is no legislative history to suggest that Congress intended
that the Department adopt an interpretation of the MEP formula under
which Puerto Rico would receive a substantial increase of MEP funds
from FY 2002 to FY 2003--an increase that, because the MEP is funded
for FY 2003 at a level that would not permit the maximum formula-based
allocations to States, would have the effect of reducing every other
State's award proportionately. Rather, Congress appears to have
intended that Puerto Rico instead benefit from the gradual narrowing of
the per-pupil expenditure gap, as provided in section 1303(b)(2).
Narrowing of this gap would result in increases in the size of Puerto
Rico's MEP allocation commensurate with increases in appropriations for
the MEP.
We, therefore, interpret sections 1303(b)(1), which requires using
``the number of children counted under subsection (a)(1)(A),'' to mean
that the FY 2003 MEP award to Puerto Rico, like the FY 2003 award to
all other States, will be based on the FTE number of migratory children
counted for purposes of the FY 2002 award under section 1303(a)(1).
This reading of section 1303(b)(1) is consistent with section
1303(a)(2), which, by providing that each State's base amount of MEP
funds in FY 2003 and subsequent years is the amount that the State
received for FY 2002, in effect incorporates into the base amount for
FY 2003 the FTE number of that State's migratory children used for the
FY 2002 allocation under section 1303(a)(1). Any adjustment in FY 2003
MEP funds for Puerto Rico would be due solely to the increase in the
minimum per-pupil expenditure adjustment factor authorized in section
1303(b)(2) and (b)(3). However, paragraph (b)(3) specifically provides
that this increase will not occur if it decreases any State's MEP award
below the amount it received during the previous fiscal year.
Therefore, because the amount available for FY 2003 MEP awards is the
same as the amount available for FY 2002 MEP awards, the Department
will continue to apply for FY 2003 the minimum per-pupil expenditure
adjustment factor for Puerto Rico of 77.5 percent that paragraph (b)(2)
required to be used for FY 2002.
In short, based on the above interpretations, and because the
overall amount of MEP funds available for award to States in FY 2003 is
equal to the amount awarded for FY 2002, the Department will make
available to all States, including Puerto Rico, FY 2003 MEP awards that
are identical in size to what was awarded to them in FY 2002.
Waiver of Proposed Rulemaking
Under the Administrative Procedure Act (5 U.S.C. 553) the
Department generally offers interested parties the opportunity to
comment on proposed regulations. However, under 5 U.S.C. 553(b)(A) the
Secretary is not required to offer the public an opportunity to comment
on an interpretative rule. These rules advise the public of our
interpretation of sections 1303(a) and (b) of ESEA, as amended.
Therefore, under 5 U.S.C. 553(b)(A), the Secretary has determined that
proposed rulemaking is not required. For the same reason, a delayed
effective date is not required under 5 U.S.C. 553(d)(2).
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 is intended to provide early notification of our
specific plans and actions for this program.
[[Page 34913]]
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(Catalog of Federal Domestic Assistance Number 84.011: Title I,
Education of Migrant Children)
Dated: June 5, 2003.
Eugene W. Hickok,
Under Secretary of Education.
[FR Doc. 03-14717 Filed 6-10-03; 8:45 am]
BILLING CODE 4000-01-P