[Federal Register Volume 60, Number 124 (Wednesday, June 28, 1995)]
[Rules and Regulations]
[Pages 33654-33656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15795]




[[Page 33653]]

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Part IX





Department of Education





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34 CFR Part 201



Funding Under Part C of Title I of the Elementary and Secondary 
Education Act of 1965; Education of Migratory Children; Final Rule

  Federal Register / Vol. 60, No. 124 / Wednesday, June 28, 1995 / 
Rules and Regulations   
[[Page 33654]] 

DEPARTMENT OF EDUCATION

Office of Elementary and Secondary Education

34 CFR Part 201

Funding Under Part C of Title I of the Elementary and Secondary 
Education Act of 1965 (ESEA); Education of Migratory Children
AGENCY: Department of Education.

ACTION: Notice of final priority.

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SUMMARY: The Assistant Secretary for Elementary and Secondary Education 
(Assistant Secretary) establishes an absolute priority for distribution 
of Migrant Education Program (MEP) funds under section 1308(a) of Title 
I of the Elementary and Secondary Education Act of 1965 (ESEA), as 
amended by the Improving America's Schools Act (IASA) (Pub. L. 103-
382). Under this priority the Department will make grant awards, on a 
one-time basis in fiscal year (FY) 1995, to provide additional 
resources to State educational agencies (SEAs) in order to assist them 
in their responsibilities, under the Migrant Education Program (MEP), 
to ensure the interstate and intrastate transfer of educational and 
health records of migratory children.

EFFECTIVE DATE: This priority takes effect on July 28, 1995.

FOR FURTHER INFORMATION CONTACT: James English, Office of Migrant 
Education, U.S. Department of Education, 600 Independence Avenue, SW, 
Portals Building, Room 4100, Washington, DC 20202-6135. Telephone: 
(202) 260-1934. Individuals who use a telecommunications device for the 
deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-
800-877-8339 between 8 a.m. and 8 p.m., Eastern time, Monday through 
Friday.
SUPPLEMENTARY INFORMATION:
Background
    The MEP, authorized in Title I, Part C, of the ESEA, is a State-
operated, formula grant program under which SEAs receive funds to 
improve the academic achievement and welfare of migratory children who 
reside in their States. Under section 1304(b)(3) of the ESEA, SEAs 
receiving MEP funds have a responsibility to carry out activities that 
promote the interstate and intrastate coordination of services for 
migratory children, and to provide for educational continuity through 
the timely transfer of pertinent school records, including health 
information, for migratory children.
    In the past, the Department assisted SEAs in carrying out their 
responsibilities regarding the transfer of records on migratory 
children by contracting, using funds set aside from the overall MEP 
appropriation, for a national Migrant Student Record Transfer System 
(MSRTS). However, because the MSRTS is no longer available for records 
transfer and the contract for its operation will end on June 30, 1995, 
the SEAs are now in the process of enhancing, and in some cases 
reexamining, State and local recordkeeping and records transfer 
capabilities for migratory children. In this regard, the issue of how 
school records of migratory children can best be transferred after the 
end of MSRTS has been the subject of considerable discussion among 
State and local officials over the past year, and many SEAs have 
identified the enhancement of State and local capacities to maintain 
and transfer records on migratory children as a critical need that 
warrants further Federal assistance.
    On May 4, 1995, the Department distributed a draft of a priority 
notice to SEAs that proposed, under the authority of section 1308(a) of 
the ESEA, to use $2.2 million in available FY 1994 MEP funds for 
special, one-time grants to the SEAs for activities that support their 
records transfer responsibilities. This draft notice proposed to award 
the $2.2 million in equal amounts to each SEA receiving MEP formula 
grant funds, except that no SEA could receive an amount that would 
exceed 20 percent of its FY 1995 MEP formula grant award. As of June 1, 
1995, 49 of the 51 State ME Directors, as well as two other interested 
parties, commented on the draft priority notice.
    Forty-two of the State MEP Directors expressed complete 
satisfaction with the proposed distribution of funds, while seven of 
the State MEP Directors and the two other commenters expressed some 
concerns about the proposal. Three State MEP Directors and the two 
other commenters suggested that it would be more reasonable to award 
additional funds for records transfer proportionally on the basis of 
the size of a State's MEP rather than in equal State amounts. One of 
the other commenters suggested a two-tiered distribution approach, with 
some of the funds to be distributed proportionally based on the size of 
the States' population of migratory children, and the remaining funds 
to be distributed equally. Two State MEP Directors suggested that some 
of the funds be reserved for new, national activities to enhance 
records transfer in the MEP, while a third State MEP Director noted 
that the Department was already adequately supporting national 
activities through the establishment of a Records Exchange Task Force. 
Two State MEP directors suggested that the funds be clearly reserved to 
support interstate transfer activities; and one of the other commenters 
also noted the need to emphasize interstate transfer activities without 
restricting funds exclusively for this purpose. Finally, one commenter 
also suggested that SEAs applying for these funds be required to 
provide more narrative detail than simply an assurance that the funds 
would be used to support records transfer activities.
    In response to the comments, this notice incorporates changes to 
clarify the priority's intent and encourage the use of funds especially 
for activities to enhance the interstate transfer of records of 
migratory children. In addition, the notice expands the formula for 
distributing funds under this priority, as a result of comments, and 
also because, after the draft notice was circulated for comments, the 
Department identified an additional $0.5 million in funds beyond the 
$2.2 million originally proposed for distribution under this priority.
Priority
    Under section 1308(a) of the ESEA, the Department has the 
authority, after consultation with the States, to issue grants or 
contracts to SEAs, local educational agencies (LEAs), institutions of 
higher education (IHEs) and other public or private nonprofit entities 
to improve the interstate and intrastate coordination of those 
agencies' educational programs for migratory children. Under this 
authority, the Department is reserving $2.7 million to be awarded, as 
an absolute priority in FY 1995, to SEAs for special grants to assist 
them in their responsibilities to ensure the maintenance and prompt 
transfer of pertinent educational and health records of migratory 
children on an interstate and intrastate basis. The Department believes 
that making these funds available to support SEA-sponsored interstate 
and intrastate records transfer activities is appropriate in view of 
the importance of records transfer in the educational continuity of 
migratory children, and the expressed needs of the SEAs for additional 
assistance to develop their records transfer capacity. Moreover, under 
this priority, the $2.7 million to be awarded will retain its original 
purpose, since the Department originally had reserved this sum from the 
FY 1994 MEP appropriation to support the SEAs' [[Page 33655]] records 
transfer activities through MSRTS.

Use of Funds Under This Priority

    Funds awarded under this absolute priority must be used only for 
activities that clearly support an SEA's responsibilities to promote 
educational continuity of migratory children through the timely 
transfer of their pertinent educational records, including health 
information, on an interstate and intrastate basis. Such activities may 
include, but are not limited to: Development and implementation of 
procedures that an SEA or its operating agencies will use to maintain 
and transfer records for migratory children; the purchase of related 
equipment (e.g., computers, fax machines) and material (e.g., ``red 
bags'' to be used by migratory children and their parents to hand carry 
records from site to site); and the training of State and local 
educational personnel, as well as parents of migratory children, in the 
use of these procedures, equipment, and material. Given that greater 
difficulties may be associated with the timely transfer of records on 
an interstate basis, the Department encourages SEAs to consider how the 
funds awarded under this priority can be used to address the particular 
problems of interstate records transfer.

Amount of the Grant

    After carefully considering all the comments received on the 
initial proposal to award equal grant amounts to SEAs, and because of 
the availability of additional funds that can be used for this 
priority, the Department will award a total of $2.7 million under this 
priority to SEAs receiving an FY 1995 MEP formula grant on the basis of 
the following two-tiered formula:

-- $2.2 million in equal amounts to each SEA; and
-- $0.5 million based on each State's calendar year 1994

full-time-equivalent (FTEs) count of migratory children ages 3-21 who 
are within three years of a qualifying move, as provided in section 
1309(2) of the ESEA.
    No SEA will receive an award that exceeds 20 percent of its FY 1995 
MEP formula grant award. Six SEAs, those of the District of Columbia, 
New Hampshire, Rhode Island, Tennessee, West Virginia and Wyoming, are 
affected by this 20 percent limitation on the size of awards.
    The Appendix to this notice contains a chart reflecting the size of 
each SEA's award under this priority assuming that all eligible SEAs 
apply. If an SEA does not apply for these funds, its share of grant 
funds under this priority will be distributed to the requesting SEAs, 
subject to the 20 percent limitation, on the basis of the number of 
those States' migratory children.
    The Department believes that this two-tiered formula for awarding 
the $2.7 million available under this priority distributes these 
limited funds effectively to help promote long term benefits for the 
Nation's migratory children by helping all SEAs focus on the interstate 
and intrastate transfer of records of migratory children.
    Under the first tier of the formula, the $2.2 million originally 
available for this priority will continue to be distributed in equal 
amounts to the SEAs (subject to the 20 percent limitation). This 
distribution method provides like amounts to each State, irrespective 
of the size of its MEP or its technological sophistication, since each 
State is likely to encounter threshold costs related to improving its 
own capacity and that of its operating agencies to maintain and 
transfer information on eligible migratory children. Indeed, for many 
States, the one-time grants available under this priority represent 
only ``seed money'' for their records transfer efforts. All SEAs may 
reserve funds from their basic MEP formula allocations to carry out 
their responsibilities to ensure the transfer of records for eligible 
migratory children. Yet, for those SEAs with relatively small basic MEP 
grant allocations, and therefore less flexibility than larger 
allocation States to use those funds to meet records-transfer needs, 
the small threshold amount that would be available under the 
Department's initial proposal will help address some basic development 
and implementation issues (including staff time). In comments received 
on this initial proposal, only one State MEP Director suggested that 
the proposed threshold amount would exceed the amount that some States 
need to implement the records transfer activities required under the 
MEP statute. At the same time, other State MEP Directors from large, 
basic MEP allocation States supported the proposed equal allocation of 
funds to each State under this priority. As one such State MEP Director 
noted, while his large, basic MEP allocation State would benefit to a 
greater degree from a distribution based wholly on numbers of migratory 
children, the proposed distribution of equal amounts seemed reasonable 
``since each State has an equal responsibility [under the MEP] to 
develop and implement a method for transferring information on migrant 
children as they move.'' Similarly, another State director from a 
large, basic MEP allocation State noted that, unless those SEAs with 
smaller basic MEP allocations are able to develop an adequate records 
transfer capacity, the larger basic MEP allocation States from which 
migratory children move will be unable to send to, or receive records 
from, these States where the children migrate.
    While all SEAs that receive MEP funds could use additional funds to 
meet their statutory responsibilities to ensure the timely transfer of 
education records of migratory children within and across States, as a 
practical matter, SEAs with larger basic MEP grant allocations can, as 
one State Director commented, draw upon those funds to the degree 
necessary for records transfer, consistent with their other MEP 
responsibilities, in ways that small-allocation States cannot. For 
example, with the end of the MSRTS, the larger amounts of funds that 
these States previously spent on MSRTS terminal operations now are 
available to meet existing records-transfer needs.
    Under the second tier of the formula, the Department will 
distribute an additional $0.5 million, in excess of the $2.2 million 
originally identified by the Department. Given that States with larger 
numbers of migratory children have more student records to transfer, 
the Department has decided to distribute these additional funds on the 
basis of the number of migratory children in each State, using the same 
calendar year 1994 FTE count of migratory children that the Department 
is using to calculate MEP allocations under the MEP State formula grant 
formula in section 1303 of the ESEA.
    Finally, the Department will limit the amount of an award under 
this priority to no more than 20 percent of an SEAs' basic MEP grant 
award.
    The Department believes that this two-tiered formula for awarding 
the $2.7 million, with its 20 percent limitation, represents the most 
appropriate means of distributing these funds to support the 
development and implementation of appropriate records transfer 
procedures so that staff at new schools to which migratory children 
move, in whatever States they are located, can have the information 
needed to make sound educational decisions about these children.

    Note: The $2.7 million available for award under this priority 
was originally reserved from the FY 1994 MEP appropriation. 
Therefore, the Department must obligate these funds by September 30, 
1995, and SEAs (and their subrecipients) must do so by September 30, 
1996. [[Page 33656]] 

Procedure for Award

    Only an SEA that receives MEP formula grant funds for FY 1995 may 
receive a grant under this priority. To receive funding under this 
priority, an SEA must submit a letter, signed by the Chief State School 
Officer or his or her authorized representative, requesting funds under 
this absolute priority and providing an assurance that these funds 
shall be used only for activities that clearly support the SEA's 
responsibilities to ensure the maintenance and prompt transfer of 
pertinent records, including health information, of migratory children 
on an interstate and intrastate basis. This letter should be received 
by the Office of Migrant Education contact person identified in the For 
Further Information Contact section of this notice on or before July 
18, 1995.
    After careful consideration of a suggestion by one commenter, the 
Department has decided not to require SEAs to provide either a 
description of the proposed use of grant funds or a budget as a 
condition of receiving funds under this priority. This information 
would be of limited use since it would reflect only a portion of a 
State's record transfer activities for migratory children. Instead, the 
Department intends to use other means of program monitoring to obtain 
information on the full range of records transfer activities that SEAs 
and their local operating agencies are conducting, including activities 
funded under both the MEP formula allocation and this priority.

Waiver of Proposed Rulemaking

    In accordance with the Administrative Procedure Act (5 U.S.C. 553), 
it is the practice of the Department to offer interested parties the 
opportunity to comment on proposed rulemaking documents. However, in 
accordance with section 437(d)(1) of the General Education Provisions 
Act, the Assistant Secretary has determined that it is desirable to 
waive formal public comment on this priority. At the same time, States 
were consulted as required under section 1308(a) of the ESEA. The 
Assistant Secretary makes this determination to waive formal public 
comment in order that funds under this priority may be made available 
to the SEAs as quickly as possible to assist them in meeting their 
records transfer responsibilities, and to ensure that these funds can 
be distributed to SEAs on or before September 30, 1995, as required by 
law. This waiver applies only to this FY 1995 priority.

Applicability of 34 CFR Part 75 and 34 CFR Part 205

    In view of the process that the Department will use to obtain 
information and make awards under this priority, the regulations in 34 
CFR part 75 (Direct Grant Programs) of the Education Department General 
Administrative Regulations (EDGAR), and the regulations in 34 CFR part 
205 (Migrant Education Coordination Program) do not apply. Instead, 
grants awarded under this priority will be administered, like the MEP 
itself, under the provisions of 34 CFR parts 76, 77, 80, 81, 85 and 86 
of EDGAR. This includes, among other requirements, responsibility under 
34 CFR 76.730 to maintain records, separately from the MEP formula 
allocation, on how the funds awarded under this priority have been 
used.

Intergovernmental Review

    Grants to SEAs for the MEP are subject to the requirements of 
Executive Order 12372 and the regulations in 34 CFR part 79. The 
objective of the Executive order is to foster an intergovernmental 
partnership and a strengthened federalism by relying on processes 
developed by State and local governments for coordination and review of 
proposed Federal financial assistance.
    In accordance with this order, this document is intended to provide 
early notification of the Secretary's specific plans and actions for 
these programs.

    Applicable Program Regulation: 34 CFR Part 201

(Program Authority: 20 U.S.C. 6394(d), 6398(a))

(Catalog of Federal Domestic Assistance Number 84.011, Migratory 
Education Basic State Formula Grant Program)

(Approved by the Office of Management and Budget under control 
number 1810-0584)

    Dated: June 21, 1995.
Thomas W. Payzant,
Assistant Secretary for Elementary and Secondary Education.

   Appendix.--Award Amounts Under Special FY 1995 MEP Records Transfer  
                                Priority                                
Alabama....................................................      $50,122
Alaska.....................................................       57,851
Arizona....................................................       58,137
Arkansas...................................................       51,897
California.................................................      205,815
Colorado...................................................       50,918
Connecticut................................................       47,999
Delaware...................................................       45,798
District of Columbia.......................................       38,501
Florida....................................................       84,041
Georgia....................................................       53,742
Idaho......................................................       54,417
Illinois...................................................       47,805
Indiana....................................................       49,671
Iowa.......................................................       45,767
Kansas.....................................................       55,204
Kentucky...................................................       57,154
Louisiana..................................................       48,885
Maine......................................................       50,044
Maryland...................................................       45,595
Massachusetts..............................................       48,716
Michigan...................................................       60,742
Minnesota..................................................       48,846
Mississippi................................................       47,812
Missouri...................................................       46,699
Montana....................................................       46,373
Nebrasla...................................................       49,538
Nevada.....................................................       46,099
New Hampshire..............................................       19,504
New Jersey.................................................       46,461
New Mexico.................................................       47,622
New York...................................................       52,493
North Carolina.............................................       52,948
North Dakota...............................................       46,240
Ohio.......................................................       47,964
Oklahoma...................................................       47,706
Oregon.....................................................       61,035
Pennsylvania...............................................       52,270
Rhode Island...............................................       30,598
South Carolina.............................................       46,333
South Dakota...............................................       46,407
Tennessee..................................................       19,799
Texas......................................................      124,769
Utah.......................................................       47,410
Vermont....................................................       46,457
Virginia...................................................       46,598
Washington.................................................       65,270
West Virginia..............................................       19,976
Wisconsin..................................................       46,089
Wyoming....................................................       34,995
Puerto Rico................................................       56,868
      National Totals......................................    2,700,000

[FR Doc. 95-15795 Filed 6-27-95; 8:45 am]
BILLING CODE 4000-01-P