[Federal Register Volume 68, Number 112 (Wednesday, June 11, 2003)]
[Notices]
[Pages 34911-34913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-14717]


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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: [email protected].
    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.

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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