[Federal Register Volume 73, Number 146 (Tuesday, July 29, 2008)]
[Rules and Regulations]
[Pages 44102-44125]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-16859]



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Part IV





Department of Education





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34 CFR Part 200



Improving the Academic Achievement of the Disadvantaged; Migrant 
Education Program; Final Rule

  Federal Register / Vol. 73, No. 146 / Tuesday, July 29, 2008 / Rules 
and Regulations  

[[Page 44102]]


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DEPARTMENT OF EDUCATION

34 CFR Part 200

RIN 1810-AA99
[Docket Id 2007-ED-OESE-130]


Improving the Academic Achievement of the Disadvantaged; Migrant 
Education Program

AGENCY: Office of Elementary and Secondary Education, Department of 
Education.

ACTION: Final regulations.

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SUMMARY: The Secretary amends the regulations governing the Migrant 
Education Program (MEP) administered under Part C of Title I of the 
Elementary and Secondary Education Act of 1965, as amended (ESEA). 
These final regulations adjust the base amounts of the MEP Basic State 
Formula grant allocations for fiscal year (FY) 2006 and subsequent 
years (as well as for supplemental MEP allocations made for FY 2005); 
establish requirements to strengthen the processes used by State 
educational agencies (SEAs) to determine and document the eligibility 
of migratory children under the MEP; and clarify procedures SEAs use to 
develop a comprehensive statewide needs assessment and service delivery 
plan.

DATES: These regulations are effective August 28, 2008. However, 
affected parties do not have to comply with the new information 
collection requirements in Sec. Sec.  200.83 and 200.89 until the 
Department of Education publishes in the Federal Register the control 
number assigned by the Office of Management and Budget (OMB) to these 
information collection requirements. Publication of the control number 
notifies the public that OMB has approved these information collection 
requirements under the Paperwork Reduction Act of 1995.

FOR FURTHER INFORMATION CONTACT: James J. English, U.S. Department of 
Education, 400 Maryland Avenue, SW., Room 3E315, 20202-6135. Telephone: 
(202) 260-1394 or via Internet: [email protected].
    If you use a telecommunications device for the deaf (TDD), you may 
call the Federal Relay Service (FRS) at 1-800-877-8339.
    Individuals with disabilities may obtain this document in an 
alternative format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person listed in the preceding 
paragraph.

SUPPLEMENTARY INFORMATION: These regulations implement requirements of 
the Migrant Education Program (MEP) as authorized under Part C of Title 
I of the ESEA, as amended. On May 4, 2007, the Secretary published a 
notice of proposed rulemaking (NPRM) for the MEP in the Federal 
Register (72 FR 25228). In the preamble to the NPRM, the Secretary 
discussed on pages 25230 through 25236 the major regulatory changes 
proposed in that document. These proposed changes consisted of the 
following:
     Amending Sec.  200.81 to add to and improve program 
definitions governing who is considered an eligible migratory child.
     Amending Sec.  200.83 to clarify that a State's 
comprehensive needs assessment and plan for service delivery must, as 
required by the ESEA, include measurable program outcomes for the MEP 
that relate to the performance targets the State has established for 
all children.
     Adding a new Sec.  200.89(a) to establish a procedure for 
the Secretary to use State defect rates that the Secretary accepts as 
the basis for adjusting the 2000-2001 counts of eligible migrant 
children, and, thereby determine the base amount of a State's MEP award 
for FY 2006 and subsequent years. This proposed regulation also 
required, as a condition to an SEA's receipt of its final FY 2006 and 
subsequent-year MEP awards, that an SEA conduct a thorough re-
documentation of the eligibility of all children (and the removal of 
all ineligible children) included in the SEA's 2006-2007 MEP child 
counts).
     Adding a new Sec.  200.89(b) to establish the minimum 
requirements an SEA must meet in conducting--(a) retrospective re-
interviewing, where needed, to examine and validate the accuracy of its 
statewide eligibility determinations under the MEP, and (b) annual 
prospective re-interviewing in order to ensure ongoing quality control 
in all future eligibility determinations.
     Adding a new Sec.  200.89(c) to--(1) establish the minimum 
requirements an SEA must meet in documenting its eligibility 
determinations under the MEP (including the use of a standard 
Certificate of Eligibility (COE) form), and (2) clarify that the SEA is 
responsible for accurate determinations of program eligibility.
     Adding a new Sec.  200.89(d) to establish minimum 
requirements for a system of quality controls that an SEA must 
implement in order to promote accurate migrant child eligibility 
determinations.
    These final regulations contain the following changes from the 
NPRM:
     The definitions of agricultural work and fishing work in 
Sec.  200.81(a) and (b), respectively, have been modified to remove the 
terms ``generally'' and ``in rare cases'' when referring to work done 
for wages or personal subsistence.
     The definitions of in order to obtain and move or moved in 
Sec.  200.81(c) and (g), respectively, have been revised to-- (1) 
remove contradictory language and clarify that a move, for purposes of 
determining MEP eligibility, must occur due to economic necessity, (2) 
clarify that individuals who state that a purpose of their move was to 
seek any type of employment, i.e., workers who moved with no specific 
intent to find employment in a particular job, are deemed to have moved 
with a purpose of obtaining qualifying work if the worker obtains such 
work soon after the move, and (3) clarify the information that an SEA 
must have to determine that a worker who did not obtain qualifying work 
soon after a move did move in order to obtain qualifying work.
     The definition of migratory agricultural worker in Sec.  
200.81(d) has been revised to clarify that agricultural work includes 
dairy work.
     The definition of principal means of livelihood in 
proposed Sec.  200.81(i) has been removed.
     The definitions of migratory agricultural worker and 
migratory fisher in Sec. Sec.  200.81(d) and (f), respectively, have 
been revised to remove the reference to ``principal means of 
livelihood'' and clarify that, in order to establish MEP eligibility, a 
move as defined in Sec.  200.81(g) made by a migratory agricultural 
worker or migratory fisher must occur due ``to economic necessity.''
     Section 200.81(h) has been revised to clarify that the 
term personal subsistence means that the worker and his or her family, 
as a matter of the family's economic necessity, consume, as a 
substantial portion of their food intake, the crops, dairy products, 
and livestock they produce or the fish that they catch.
     To simplify the definition of in order to obtain, we have 
added a new definition of qualifying work in Sec.  200.89(i) to mean 
temporary employment or seasonal employment in agricultural work or 
fishing work.
     The definition of seasonal employment in Sec.  200.81(j) 
has been revised to clarify that seasonal employment is employment that 
occurs only during a certain period of the year due to the cycles of 
nature and that, by its nature, may not be continuous or carried on 
throughout the year.
     The definition of temporary employment in Sec.  200.81(k) 
has been

[[Page 44103]]

revised to simplify how temporary employment is determined and to 
provide greater clarity and flexibility as to how (when and how often) 
an SEA must validate that employment that appears to be constant and 
year-round can reasonably be considered temporary employment.
     Section 200.89(a)(2) has been revised to clarify that the 
``thorough re-documentation'' referred to in this paragraph means that 
an SEA must examine its rolls of all currently identified migratory 
children and remove from the rolls all children it judges to be 
ineligible based on the types of problems identified in its statewide 
retrospective re-interviewing as causing defective eligibility 
determinations.
     Section 200.89(b)(1)(i) has been revised to clarify that, 
in addition to those States that have not yet conducted retroactive re-
interviewing, any SEA that submitted a State defect rate that is not 
accepted by the Secretary, or that has a problem in identification and 
recruitment that is subject to corrective action, will also need to 
conduct retrospective re-interviewing.
     Section 200.89(b)(2)(iii) has been revised to permit, in 
prospective re-interviewing, use of alternative interviewing methods 
including telephone re-interviews if face-to-face re-interviewing is 
found to be impractical without regard to whether, as the NPRM would 
have required, the circumstances making face-to-face re-interviewing 
impractical would be considered ``extraordinary.''
     Section 200.89(d)(3) has been revised to permit more 
flexibility in how an SEA transmits its responses to eligibility policy 
questions to all its local operating agencies (LOAs).
     Section 200.89(d)(7) has been revised to clarify that an 
SEA's policy for implementing corrective actions includes addressing 
monitoring or audit findings of the Secretary, as well as those of the 
State.
    These changes are explained more fully in the Analysis of Comments 
and Changes section that follows.

Analysis of Comments and Changes

    In response to the Secretary's invitation in the NPRM, 26 parties 
submitted over 125 comments on the proposed regulations. An analysis of 
the comments and of the changes in the regulations since publication of 
the NPRM follows. We discuss substantive issues primarily under the 
sections of the regulations to which they pertain. Generally, we do not 
address technical and other minor changes--and suggested changes the 
law does not authorize the Secretary to make.

General

    Comments: Several commenters noted generally that the proposed 
regulations clarified and more fully explained some confusing elements 
of the current regulations and non-regulatory guidance. One commenter, 
however, suggested that in light of Congress' plans to reauthorize the 
ESEA, the Department should wait to issue any of the new regulations 
and, instead, revise the Department's non-regulatory guidance on the 
MEP. Three other commenters suggested that we not change the program 
definitions prior to reauthorization of the ESEA.
    Discussion: The Secretary appreciates the commenters' recognition 
that the proposed regulations represent an attempt to clarify confusing 
issues in the current regulations and non-regulatory guidance.
    The Secretary does not agree that issuance of final regulations 
should await the next ESEA reauthorization. We do not know when 
Congress will reauthorize the ESEA and the MEP, and the issues 
addressed in these regulations--improved definitions, an updated 
allocations process, and defined quality control procedures--are needed 
now in order to resolve serious problems and implement essential 
improvements in program operations. Moreover, the Secretary believes 
that the definitions established in these final regulations will 
continue to be useful, even after reauthorization, in helping to 
standardize and otherwise improve the clarity and accuracy of State 
eligibility determinations. These definitions will help to ensure the 
basic integrity of the MEP and that the MEP benefits those children it 
is designed to serve.
    Changes: None.

Paperwork Burden and Potential Costs and Benefits

    Comments: Five commenters expressed concerns about the potential 
costs and burden associated with several sections of the proposed 
regulations. Three commenters expressed concern about the estimated 
$4.5 million of annual additional costs of collecting information 
needed to implement the proposed regulations [72 FR 25236]. While 
acknowledging that States already conduct some of these activities in 
order to implement their statutory responsibilities, these commenters 
stated that much of these additional costs would be attributable to 
unnecessary activities that the regulation would require. Another 
commenter questioned the accuracy of our statement in the NPRM [72 FR 
25236] that the proposed regulations would not add significantly to the 
costs of implementing the MEP. Still another commenter noted that the 
estimates of time and funds in the associated OMB information 
collection package 1810-0662 did not differentiate between States that 
receive large and small MEP allocations, and that requiring each State 
to spend a total of 20,691 hours to comply with the regulations would 
overwhelm States with small MEP allocations and negatively affect their 
ability to provide direct services to migratory children. The commenter 
also questioned the accuracy of the Department's assertion in the 
preamble to the NPRM [72 FR 25232] that much of the annual survey in 
proposed Sec.  200.81(k), regarding the definition of temporary 
employment, reflects work States already do to update information on 
eligibility and continued residency of previously identified migratory 
children. Three commenters also expressed concern about the ability of 
States with small MEP allocations to fulfill their responsibilities 
under Sec.  200.89(c) to document child eligibility, and stated that 
the paperwork burden associated with meeting these requirements might 
compel these States to end their participation in the MEP.
    Another commenter stated that we had, in our OMB information 
collection package (1810-0662), greatly underestimated the average time 
needed to complete re-interviews, determine eligibility, complete and 
update COEs, and implement the other quality control procedures 
identified in the proposed regulations. The commenter suggested that 
States would need four hours rather than two hours to conduct each re-
interview, four hours rather than one and one-half hours to make an 
eligibility determination, and two hours rather than one-third hour to 
complete a COE.
    Discussion: The Secretary appreciates the commenters' concerns. 
However, for the most part, the estimated $4.5 million of 
``additional'' costs of information collection under this regulation 
are not new. Rather, these costs and associated information burden are 
``additional'' only in that they would now be attributable to these 
specific MEP regulations instead of the requirements of the statute and 
applicable sections of EDGAR.
    We estimate that SEAs and their local operating agencies (LOAs) 
[see definition in section 1309(1) of ESEA] have historically expended 
approximately these amounts implementing various eligibility 
determination activities under the general authority of the statute and 
the

[[Page 44104]]

general requirements for documentation and program monitoring that are 
in 34 CFR 76.731 (section 76.31 of the Education Department General 
Administrative Regulations (EDGAR)). For example, those provisions have 
always required SEAs and their LOAs to document the basis for 
determining that a child meets the MEP eligibility requirements, 
whether on a COE or in another written record. They also have required 
SEAs to review COEs in terms of content and completeness, and ensure 
training and oversight of staff conducting identification and 
recruitment. As we explained in the information collection package 
associated with these final regulations that the Department submitted 
to OMB [1810-0662], the annual total cost to collect, review and update 
COEs--now to be required by Sec.  200.89(c), but responsibilities that 
SEAs and their LOAs already have--accounts for over 60 percent of the 
estimated ``additional'' $4.5 million annual cost.
    In addition, the cost and burden-hour estimates identified in the 
preamble to the NPRM and the associated information collection package 
represent an average across all States. The Secretary expects that 
States with smaller MEP allocations will expend considerably fewer 
hours and considerably less program funds in implementing these 
regulations than the averages referred to in the preamble to the NPRM 
in and the information collection package. Of course, conversely, 
States with large MEP allocations will likely expend somewhat greater 
amounts of effort and program funds than the averages, but they also 
receive proportionally more annual MEP funding.
    Finally, with regard to the cost of validating the temporary nature 
of work that otherwise appears to be constant and year-round, the 
Secretary continues to believe that such validation can be accomplished 
at little or no additional expense or burden as part of the process 
that SEAs now conduct to annually update prior eligibility and 
continued residency of migrant children. However, as discussed 
elsewhere in these final regulations, the Secretary is simplifying this 
requirement.
    The Secretary continues to believe, based on both the expertise of 
Departmental staff with prior State-level experience and discussions 
with State MEP staff, that the Department's cost estimates for re-
interviews, determining eligibility, and updating COEs represent a 
reasonable estimate of the average time needed to carry out these 
activities. However, we note that the public will have another 
opportunity to comment on the burden as estimated in the OMB 
information package [1810-0662] before the information requirements of 
the final regulation become effective. The Secretary will take into 
consideration any other comments received from the public on these 
issues.
    Changes: None.
    Section 200.81 Program definitions.
    Section 200.81(a) and (b)--Agricultural work and Fishing work.
    Comments: Two commenters indicated that they had no substantive 
concerns with the proposed changes to these definitions. However, other 
commenters expressed concern that the proposed changes would 
unnecessarily restrict MEP eligibility or create problems in 
identifying exactly which workers perform temporary or seasonal 
agricultural or fishing work.
    As a point of reference, current regulations (34 CFR 200.81(a)(1)) 
define an agricultural activity to include ``[a]ny activity directly 
related to the * * * processing of crops, dairy products, poultry or 
livestock for initial commercial sale or personal subsistence.'' The 
current definition of a fishing activity in 34 CFR 200.81(b) contains a 
similar phrase. Aside from proposing to change the term ``activity'' to 
``work'' in each definition so as to conform to the terms used in the 
statutory definition of migratory child, we proposed to revise the 
phrase ``processing * * * for initial commercial sale'' in both 
definitions to state simply ``for initial processing.'' We also 
proposed to eliminate the phrase ``directly related to'' in both 
definitions.
    With respect to these proposed changes, several commenters stated 
that it would be difficult to determine when ``initial processing'' 
ends, i.e., what particular phases or types of agricultural or fish 
processing work would be considered ``initial processing.'' One 
commenter asked whether planting or clearing a farm field might be 
considered ``initial processing.'' Some commenters suggested that the 
final regulations define the term ``initial processing;'' one of these 
commenters suggested that the term cover multiple stages of activity, 
perhaps up through the point of initial commercial sale either because 
it will be difficult to decide when ``initial processing'' ends, or 
because there may be processes constituting refinement of the raw 
product that occur after ``initial processing'' that should still 
reasonably be considered a qualifying activity. Other commenters 
recommended that before adopting final regulations, the Secretary 
further study the various processing industries to identify which 
activities can reasonably be considered ``initial processing.''
    Another commenter asked that we retain the language, ``any activity 
directly related to,'' that is in the current definitions because it 
helps a State distinguish between workers who are handling the crops 
and, therefore, would be eligible for the MEP, and the crew chiefs, 
mechanics, and other workers (e.g., inventory clerks) who might be 
employed on a farm but would not be eligible. Another commenter stated 
that we should retain the language ``initial commercial sale'' because 
it establishes a point after which work is no longer qualifying for 
purposes of the MEP.
    With regard to our proposal to include in the definition of fishing 
work a statement that this work ``consists of work generally performed 
for wages or in rare cases personal subsistence,'' two commenters 
recommended that we remove the phrase ``in rare cases'' because some 
States have substantial populations that fish for subsistence purposes 
rather than fish for wages.
    Finally, another commenter recommended including the hunting or 
harvesting of whales, walruses, and seals in the definition of fishing 
work because these activities are conducted for personal subsistence.
    Discussion: We proposed to remove the phrases ``an activity 
directly related to'' and ``initial commercial sale'' that are in the 
current definitions because we found that these phrases were vague, 
difficult to apply, and applied differently in different States. We 
believe that referring to ``initial processing,'' which as stated in 
the NPRM [72 FR 25230] involves working with ``raw products,'' will 
enable State and local MEP personnel to identify more precisely the 
particular (and more limited) types of work, especially processing 
work, that can reasonably be considered agricultural or fishing work 
for purposes of establishing eligibility under the MEP.
    We do not agree that the regulations should define the term 
``initial processing'' more specifically. We think that States may find 
it more helpful for the Department to address in non-regulatory 
guidance how this term applies in specific circumstances. This approach 
will provide SEAs with greater flexibility to consider particular 
situations in different processing industries--each of which has 
different sets of jobs that can reasonably be considered ``initial 
processing'' and different points in the processing cycle where 
``initial processing'' (i.e., of a raw product into a more refined 
product) might reasonably be determined to end.

[[Page 44105]]

    With respect to the last sentence of the definitions of both 
agricultural work and fishing work that, as proposed, provided that the 
work would be performed ``generally for wages'' or ``in rare cases 
personal subsistence,'' the Secretary believes that migratory work for 
purposes of personal subsistence is, in general, a rare occurrence 
nationally and that most of the work is performed for wages. However, 
the Secretary agrees to remove the phrases ``generally'' and ``in rare 
cases'' to avoid any further confusion.
    Finally, the Secretary does not agree that the hunting or 
harvesting of whales, walruses, or seals should be included in the 
definition of fishing work as the commenter suggested. The ESEA 
provides that eligibility under the MEP depends on work in agriculture 
or fishing. While the Secretary recognizes that whales, walruses, or 
seals are harvested for personal subsistence, these animals are not 
fish, and catching or processing them cannot be considered to be 
fishing work. Moreover, excluding the catching or processing of these 
animals from eligible agricultural or fishing work is consistent with 
the Department's longstanding policy that hunting of deer, moose, or 
elk or their processing into venison is not an agricultural activity 
and so, likewise, cannot support a child's eligibility under the MEP.
    Changes: The definitions of agricultural work in Sec.  200.81(a) 
and fishing work in Sec.  200.81(b) have been revised to remove the 
language ``generally'' and ``in rare cases'' from the last sentence of 
the definition.
    Section 200.81(c) In order to obtain.
    Comments: We received a number of comments about our proposed 
definition of in order to obtain. This term is used in section 1309(2) 
of the ESEA, which defines a migratory child as a child who is, or 
whose parent or spouse is, a migratory agricultural worker, including a 
migratory dairy worker, or a migratory fisher, and who in the preceding 
36 months, has moved from one school district to another ``in order to 
obtain'' temporary or seasonal employment in agricultural or fishing 
work.
    Believing that the statutory phrase ``in order to obtain'' means 
that MEP eligibility hinges on making a move for the purpose of seeking 
or obtaining this work, yet acknowledging that workers may move to a 
particular location for a number of reasons, the Secretary proposed in 
the NPRM to define the phrase ``in order to obtain'' more flexibly than 
in our current non-regulatory guidance. Specifically, while the current 
non-regulatory guidance speaks of a worker's ``primary purpose'' being 
to obtain temporary or seasonal employment in agricultural or fishing 
work, we proposed that in order to obtain mean that obtaining this work 
might be one of several purposes for the worker's move.
    Several of the commenters asserted that the proposed definition was 
inconsistent with legislative intent as well as language contained in 
earlier Departmental non-regulatory guidance, which provided, with a 
number of exceptions, that a move qualified if the worker had obtained 
the work ``as a result of the move.'' These commenters asserted that 
the Department's rationale for proposing this change was incorrect, and 
that Congress included the phrase ``in order to obtain'' in the 
definition of a migratory child only to clarify that a family who moves 
to obtain qualifying work but is unable to obtain such work may still 
be eligible for the MEP.
    Other commenters stated that the proposed definition would unduly 
complicate program eligibility determinations and, therefore, the 
definition was impractical and unreasonable. Some commenters suggested 
that the Department's interpretation would require recruiters to 
interrogate families in order to probe their intent for making a move, 
which in turn would so alienate families that they would choose not to 
participate in the program--causing eligible children to go without MEP 
services.
    Commenters also noted that permitting eligibility only if parents 
assert that the purpose of their move was to obtain qualifying work is 
problematic. They noted that workers often: may move for several 
reasons; may lack the education or language ability to explain the 
intent of a move; may be unwilling to disclose their intent; and may 
give different reasons for the same move depending on which family 
member is asked.
    Several of the commenters recommended that the Department's final 
regulations provide that a child is eligible for the MEP if a family 
simply moves across school district lines, obtains or seeks temporary 
or seasonal employment in agricultural or fishing work in the new 
district, and meets all other eligibility criteria. These commenters 
stressed that the family should not have to clearly articulate or 
demonstrate that one of the purposes of the move was to seek or obtain 
seasonal or temporary employment in agricultural or fishing work.
    Other commenters recommended that the regulations be modified to 
provide that families who move with the intent of obtaining either non-
qualifying work or any work, but who subsequently obtain temporary or 
seasonal employment in agricultural or fishing work, should be eligible 
for MEP services.
    Discussion: The Secretary continues to believe, as expressed in the 
NPRM [72 FR 25231], that the statutory definition of a migratory child 
in section 1309(2) of the ESEA requires that MEP eligibility be based 
on a worker's move from one school district to another for the purpose 
of obtaining temporary or seasonal employment in agricultural or 
fishing work. The statutory definition applies to each child eligible 
for the MEP. While we have endeavored to do so, we simply are unable to 
read the phrase that a worker moved ``in order to obtain'' temporary or 
seasonal employment in agricultural or fishing work in such a way as 
those commenters, who wish to eliminate the need for the move to be 
made at least in part for a qualifying purpose or intent to move, would 
have us do. The statutory phrase ``in order to obtain'' can only mean 
purpose or intent, and the Department has no authority to interpret the 
statute otherwise. Moreover, we are aware of no legislative history 
that reveals that Congress intended the definition of a migratory child 
to mean something other than that the worker move ``in order to 
obtain,'' i.e., with a purpose or intent of obtaining, after the move, 
temporary or seasonal employment in agricultural or fishing work.
    Thus, we are unable to construe the phrase ``in order to obtain'' 
to apply only to workers who move and who only then look for or find 
temporary or seasonal employment in agriculture or fishing work. 
Similarly, we are unable to construe the phrase and its underlying 
concept of intent to apply only to those workers who move to seek but, 
thereafter, do not find temporary or seasonal employment in 
agricultural or fishing work.
    However, the Secretary is satisfied that the regulations can be 
modified, consistent with the statutory language, to address and 
accommodate what we understand to be the commenters' principal 
objections and objectives.
    The Secretary recognizes the very real challenges SEAs face in 
determining and documenting, after the fact, whether or not each 
individual worker has moved in order to obtain temporary or seasonal 
employment in agricultural or fishing work. Any number of factors, 
including a family's poverty, the inability to adequately articulate 
the English language, a desire for privacy, a desire for children to 
receive the supplemental services the MEP may

[[Page 44106]]

offer, or a need for employment of any kind even if realistically the 
worker is likely only to obtain temporary or seasonal employment in 
agricultural or fishing work, can significantly impair a recruiter's 
ability to discern through an interview whether or not a particular 
worker has moved ``in order to obtain'' work that can establish 
eligibility under the statute.
    These final regulations include within the definition of in order 
to obtain not only (1) the provision that a worker who has moved (now 
for economic necessity) in order to obtain qualifying work if one of 
the worker's purposes in making a move was to obtain this work, but 
also (2) a provision that a worker who states that a purpose of the 
move was to seek any type of employment, i.e., the worker who has moved 
with no specific intent to find work in a particular job, but who finds 
qualifying work soon after the move, has moved ``in order to obtain'' 
qualifying employment. In making this change, we have considered the 
public comments, and drawn on prior discussions with MEP practitioners 
and knowledge we have gained reviewing audit findings regarding efforts 
to confirm MEP eligibility. We believe it is common knowledge that many 
migrant workers would accept a permanent job if they could find one, 
and state the same in general terms when interviewed to determine their 
children's eligibility for the MEP. Often, however, these same workers 
are unable, after a move, to obtain any employment other than temporary 
or seasonal employment in agricultural or fishing work and, therefore, 
accept such qualifying work. Indeed, the fact that these individuals 
find temporary or seasonal employment in agricultural or fishing work 
soon after they move can often be an indication of their intent in 
making a move.
    The fact that these individuals may not express a clear intent to 
move and obtain qualifying work creates a tension with the statutory 
requirement that a worker must move ``in order to obtain'' such work. 
It also creates very evident costs and anxieties on the part of SEA and 
LOA officials and staff related to how to correctly determine and fully 
document that a worker meets the MEP's current definition of a 
migratory worker. In those situations where a worker's intent is not 
clearly expressed, the Department is satisfied that an SEA may infer 
that individuals who, for example, express only a generalized intent to 
have moved ``for work'' or ``to obtain work,'' or would ``take any 
job,'' or without any specificity ``hope to find a permanent job'' have 
in effect expressed that one of the purposes of their move is to obtain 
temporary or seasonal employment in agricultural or fishing work. Of 
course, if an individual expresses a specific intent to obtain only a 
job in work that does not qualify under the MEP, a State could not 
determine that this individual moved in order to obtain the requisite 
qualifying work.
    Changes: The Secretary has revised the definition of in order to 
obtain to provide that in circumstances in which a worker expresses an 
intent to have moved for any type of employment, as opposed to a 
specific intent to obtain only non-qualifying employment, an SEA may 
deem that one of the purposes of the individual's move was to obtain 
qualifying employment if the worker obtains such work soon after the 
move.
    Comment: Two commenters expressed concern that the second sentence 
of the proposed definition of in order to obtain could be read as 
preventing those who do not have an offer or potential offer of 
employment in temporary or seasonal employment in agricultural or 
fishing work prior to moving from being eligible for the MEP. This 
sentence, as proposed, stated:

    ``A worker has not moved in order to obtain temporary employment 
or seasonal employment in agricultural work or fishing work if the 
worker would have changed residence even if temporary employment or 
seasonal employment in agricultural work or fishing work were 
unavailable.''

    Another commenter expressed concern that the proposed definition 
could be read in exactly the opposite way to exclude individuals who 
move knowing that they have a job, since they are not moving in order 
to seek or obtain work. This commenter was also concerned that the 
definition might exclude individuals who moved without knowing that the 
temporary or seasonal agricultural or fishing work they traditionally 
performed in a location was unavailable because of unusual 
circumstances such as a flood or a drought.
    Discussion: The language of the proposed definition was not meant 
to restrict the eligibility of families migrating in any of the three 
scenarios presented by the commenters. However, to avoid any further 
confusion, and to promote program integrity, the Secretary has revised 
the definition to clarify that in the case where a worker does not 
secure qualifying work soon after a move, more information than just a 
statement by the worker is needed to confirm that the worker moved in 
order to obtain that qualifying work. Such additional information would 
be--either a prior history of moving to obtain qualifying work or, 
especially for those who never before migrated and so have no work 
history, some other credible evidence that the worker actively sought 
the qualifying work soon after the move (e.g., a work application at 
various local farms or processors; a farmer's affirmation that the 
worker applied for work but none was available; newspaper clippings 
documenting a recent drought in the area).
    Changes: The Secretary has revised the definition of in order to 
obtain to clarify that--
    (1) If a worker states that a purpose of the move was to seek any 
type of employment, i.e., the worker moved without a specific intent to 
find work in a particular job, the worker is deemed to have moved with 
a purpose of obtaining qualifying work if the worker obtains qualifying 
work soon after the move, but that--
    (2) A worker who did not obtain qualifying work soon after a move 
may be considered to have moved in order to obtain qualifying work only 
if the worker states that at least one purpose of the move was 
specifically to seek this work, and (a) the worker is found to have a 
prior history of moves to obtain qualifying work, or (b) there is other 
credible evidence that the worker actively sought qualifying work soon 
after the move but, for reasons beyond the worker's control, the work 
was not available.
    Section 200.81(d) Migratory agricultural worker.
    Comments: Several commenters expressed concern that the proposed 
removal of the phrase ``including dairy work'' from the definition of a 
migratory agricultural worker would lessen the acceptance of such work 
as an appropriate migratory activity even though the definition of 
agricultural work refers to ``the production or initial processing of * 
* * dairy products [emphasis added].'' These commenters asked that the 
Secretary not remove this phrase.
    Discussion: The proposed removal of the reference to dairy work 
from the definition of migratory agricultural worker was purely 
editorial given that the proposed new definition of agricultural work 
clearly includes the production and processing of dairy products. 
However, upon further consideration of the comments, the Secretary 
agrees to make the change requested by the commenter.
    Changes: We have modified the definition of migratory agricultural 
worker to include a reference to ``dairy work.''
    Section 200.81(e) Migratory child.
    Comments: Several commenters expressed support for the proposed 
definition of a migratory child, noting

[[Page 44107]]

that it would be helpful in clarifying that an emancipated youth who 
moves in his or her own right as a migratory agricultural worker or a 
migratory fisher would meet the definition. One commenter stated that 
additional guidance would be necessary regarding how to document 
eligibility for these children who move on their own to seek or obtain 
temporary or seasonal agricultural or fishing work.
    Two commenters asked that we clarify our statement in the preamble 
of the NPRM [72 FR 25231] that a migratory child includes both a child 
who accompanied a migratory worker and a child who has joined a 
migratory worker in a reasonable period of time. The commenters 
recommended that the Secretary provide a definition of ``a reasonable 
period of time.'' With respect to a child who joins a worker after the 
worker has moved, one commenter recommended that we revise the 
definition to clarify that this type of ``to join'' move includes a 
move where children move ahead of the parent--e.g., when a worker 
secures work in a new town that does not begin immediately but sends 
the child first to live with family or friends in the new town and so 
start school there without any educational disruption.
    Finally, another commenter suggested that we revise the definition 
to specify that a migratory child is ``a child or youth between * * * 3 
and 21 years of age.''
    Discussion: The Secretary does not agree that it is necessary or 
desirable to (1) define in regulations how close in time to the 
parent's move a child's move must be in order to permit the child to 
have moved to join the migratory worker, or (2) address specific fact 
situations, such as when a move is made by a child in advance of a move 
made by the parent. These issues can be better and more fully addressed 
in non-regulatory guidance. Revising the definition to specify the age 
range of an eligible migratory child as between 3 and 21 is also not 
needed. First, the upper age limit of any ``child'' who would be served 
by the MEP and any other of the Title I programs is already established 
in the definition of child in the Title I regulations in 34 CFR 
200.103(a). Moreover, the age range of 3 through 21 only applies to the 
migratory children counted and reported by the SEAs for purposes of 
determining the MEP State grant allocations using the formula under 
section 1303 of ESEA. Consistent with their comprehensive needs 
assessment and service delivery plan (see section 1306(a) of the ESEA 
and Sec.  200.83), as well as Sec.  200.103 (which allows services to 
preschool children) and sections 1115(b)(1) and 1304(c)(2) of the ESEA 
(which allow services to children below school-age), SEAs may provide 
eligible migrant children below the age of three with MEP services.
    Changes: None.
    Section 200.81(f) Migratory fisher.
    Comments: One commenter expressed concern that the proposed 
definition of a migratory fisher did not address several specific fact 
situations, such as when an individual involved in fishing crosses 
school district lines but does not leave the fishing boat, or when an 
individual makes a number of moves of short duration during the fishing 
season.
    Discussion: The Secretary does not believe it is desirable or 
possible to have the regulations address specific fact patterns 
regarding migratory fishing, such as those the commenter raised. The 
issues raised by this commenter can be better and more fully addressed 
in non-regulatory guidance. The Department intends to issue such 
guidance following the issuance of these final regulations.
    Changes: None.
    Section 200.81(g) Move or Moved.
    Comments: We received a number of comments on the proposed 
definition of move or moved. One commenter suggested that we delete the 
definition because it would not consider workers who move and return to 
previously held employment to have made a move for purposes of the MEP.
    Several commenters generally agreed that travel for vacation, 
holidays, or other personal reasons unrelated to obtaining work should 
not be considered moves for purposes of the MEP. Some commenters, 
however, expressed concern about the meaning of the terms ``vacation'' 
and ``holiday,'' noting that these terms could be understood 
differently by migratory families and MEP administrators due to 
cultural differences. A number of commenters also expressed concern 
that the meaning of the phrase ``during or after'' a vacation or 
holiday was unclear and confusing. These commenters asked whether the 
use of the word ``during'' should be read to exclude all travel that 
occurs on or overlaps either a specific holiday such as Christmas, or 
that occurs during a scheduled school holiday or the summer vacation 
from school. Commenters noted that reading the definition in this 
manner could penalize families who wait for breaks in schooling to move 
so as not to cause their children to experience educational 
interruption. The commenters stated that using this definition as 
proposed could create a perverse incentive for families to make moves 
during the school year in order to continue to be eligible for the MEP.
    Commenters also said that they thought the word ``after'' in the 
phrase ``during or after a vacation or holiday'' was ambiguous. They 
asked if moving after a vacation or holiday meant that any move by a 
family ``after'' a vacation would not be considered a move for purposes 
of the MEP, or how long a period after a vacation or holiday must pass 
before a family's next move to seek or obtain temporary or seasonal 
agricultural or fishing work would be considered a move for purposes of 
the MEP. One commenter expressed the opinion that the time at which a 
move occurs is irrelevant so long as the move meets the basic 
conditions in the statute. Various commenters noted that some migrant 
families move for work during a school vacation period, and some 
suggested revising the definition either to delete the phrase ``during 
or after a vacation or holiday'' entirely or to clarify what we mean by 
the phrase. In that regard, two commenters suggested that we consider 
the fact that in some cultures travel of more than 30 days, without 
pay, and with a clear break in employment would not be considered a 
vacation.
    Several commenters noted that the proposed definition of move or 
moved was inconsistent with the proposed definition of in order to 
obtain. They commented that the proposed definition of move or moved 
did not allow travel for certain specific reasons--i.e., vacations or 
holidays, or any personal reasons unrelated to seeking or obtaining 
temporary or seasonal employment in agricultural or fishing work--while 
the proposed definition of in order to obtain would more generally have 
allowed a move to be made for multiple purposes so long as one of the 
purposes was to seek or obtain temporary or seasonal employment in 
agricultural or fishing work. The commenters expressed concern that the 
proposed definition of move or moved could prevent a family from 
qualifying for the MEP if it moved both to seek or obtain temporary or 
seasonal employment in agricultural or fishing work and for another 
personal reason. One commenter suggested revising the definition to 
clarify that moves that occur only as a result of a vacation, holiday 
or other personal reasons are not considered to be moves for purposes 
of the MEP even if temporary or seasonal employment in agricultural or 
fishing work is sought or obtained.
    Finally, two commenters asked that we clarify the meaning of the 
term ``residence'' and the phrase a ``change from one residence to 
another

[[Page 44108]]

residence'' in the proposed definition. They variously recommended that 
the Department clarify whether boats, vehicles, tents, trailers, or 
relatives' homes would be considered residences under the definition. 
Given these considerations, a commenter suggested changing the term 
``residence'' to ``location.''
    Discussion: The statutory definition of migratory child in section 
1309(2) of the ESEA, as in all similar definitions contained in prior 
authorizations of the MEP, focuses on the need for a worker to move in 
order to obtain certain kinds of employment. Yet, recent audit findings 
\1\ have highlighted situations in which children were found eligible 
for the program based on moves, such as those made during periods of 
school vacations, that a family makes in order to return to the 
children's regular school community. Given the desirability of 
clarifying when a move of this kind can qualify a child for MEP 
eligibility and when it cannot, the proposed regulations were designed 
to identify more clearly those situations in which a family's move 
would not be sufficient to establish MEP eligibility.
---------------------------------------------------------------------------

    \1\ See, e.g., the Department's Office of Inspector General 
audit of the California MEP, report No. ED OIG/A05G0032.
---------------------------------------------------------------------------

    In reviewing the comments, the Secretary agrees that the proposed 
definition was inconsistent with the definition of in order to obtain. 
To address the concerns raised by the commenters, we are revising the 
definition of move or moved in the final regulations to provide that 
the change must be from one residence to another residence that occurs 
due to economic necessity. This change fits the purposes of the MEP and 
clarifies that for the MEP, a move that is not made due to economic 
necessity is not a ``move'' for purposes of MEP eligibility. With this 
change, it is not necessary to address in the regulations the 
particularities of moves that were made for vacation, holiday, or 
personal reasons unrelated to the family's economic need. This change 
also eliminates the inconsistency between this definition and the 
definition of in order to obtain.
    The Secretary agrees it will be useful to provide clarification 
about what constitutes a residence, as well as what constitutes 
economic necessity. These clarifications-- as well as others, such as 
when and how to recognize a move that constitutes a true vacation 
(e.g., to/from a resort, visits to family and friends) and thus does 
not involve economic necessity--will also be provided in non-regulatory 
guidance following issuance of the final regulations.
    Changes: The Secretary has revised the definition of move or moved 
to provide that, for purposes of establishing eligibility under the 
MEP, a move must be a change from one residence to another residence 
that occurs due to economic necessity.
    Section 200.81(h) Personal subsistence.
    Comments: Several commenters supported the proposed definition of 
personal subsistence. Other commenters expressed several concerns. One 
commenter said that the phrase ``in order to survive'' is somewhat 
subjective and may set a different standard than is required for 
``principal means of livelihood.'' Another commenter asked whether the 
definition requires a differentiation between a worker and grower, and 
a farmer or consumer, and whether a person who works land he or she 
leases would be covered under the definition. Two of the commenters 
recommended either removing the definition of personal subsistence or 
changing the phrase ``in order to survive'' to ``as an important part 
of personal consumption.''
    Discussion: The Secretary agrees that the language of the proposed 
definition did not adequately describe the concept of personal 
subsistence, and we have revised the definition to provide a better 
description. However, in making the revisions, the Secretary does not 
agree that the differences between worker, grower, farmer, consumer or 
lease-holder are relevant to, or need to be specifically addressed in, 
this definition. We believe that these differences are clear in the 
definitions of agricultural work and fishing work, which specifically 
provide that the work must be performed only for wages or personal 
subsistence.
    Changes: We have revised the definition of personal subsistence to 
provide that the worker and his or her family, as a matter of economic 
necessity, consume, as a substantial portion of their food intake, the 
crops, dairy products, or livestock they produce or the fish they 
catch.
    Section 200.81(i) Principal means of livelihood.
    Comments: Several commenters recommended that we eliminate the 
definition of principal means of livelihood and remove the term from 
the definitions of migratory agricultural worker and migratory fisher. 
(Those definitions had provided that the temporary or seasonal 
employment in agricultural work or fishing work a migratory worker 
obtains must be a ``principal means of livelihood''--i.e., that it must 
play an important part in providing a living for the worker and his or 
her family.) Three commenters questioned the legal basis for this 
regulatory requirement. Several commenters were concerned that 
requiring the qualifying work to be a principal means of livelihood 
might be interpreted in some places as requiring an income or means 
test for determining MEP eligibility. Another commenter suggested that 
the definition is unnecessary because it is clear most migratory 
families live in extreme poverty, and because the questions some 
recruiters may ask to determine principal means of livelihood can be 
viewed by the migratory families as offensive and intrusive and can 
lead to refusals to participate in the program.
    Discussion: The proposed definition of principal means of 
livelihood is in the current regulations and we did not propose to 
modify it in the NPRM. As discussed at length in the preamble to the 
final regulations for the MEP published in the Federal Register on July 
3, 1995 [60 FR 34826], the Department established the principal means 
of livelihood requirement to ensure that, consistent with congressional 
purpose, the MEP focuses on children who have a significant economic 
tie to migratory agricultural or fishing work. This said, upon 
consideration of the comments, the Secretary agrees that, with the 
other changes being made to these regulations, the principal means of 
livelihood requirement is no longer needed. The Secretary believes that 
the other changes, which clarify that a migratory agricultural worker 
or a migratory fisher is a person who moves due to economic necessity 
in order to obtain temporary or seasonal employment in agricultural or 
fishing work, will satisfactorily address the purpose of the principal 
means of livelihood requirement.
    Changes: The definition of principal means of livelihood in 
proposed Sec.  200.81(i) has been deleted and the term has been removed 
from the definitions of migratory agricultural worker and migratory 
fisher.
    Section 200.81(i) Qualifying work.
    Comments: None.
    Discussion: As revised, the definition of the phrase in order to 
obtain would be very cumbersome without a term that could be used to 
abbreviate the phrase ``temporary employment or seasonal employment in 
agricultural work or fishing work.'' We believe the public generally 
understands this longer phrase to mean ``qualifying work,'' and so we 
are including a new definition of this term in these final regulations.

[[Page 44109]]

    Change: A new definition of qualifying work has been added in new 
Sec.  200.81(i) that provides that such work means temporary employment 
or seasonal employment in agricultural work or fishing work.
    Section 200.81(j) Seasonal employment.
    Comments: Two commenters supported our proposed definition of 
seasonal employment. However, several others expressed concern that the 
definition was too narrow because it indicated that the employment is 
dependent on the cycles of nature due only to the specific 
meteorological or climactic conditions. One commenter suggested that 
this definition did not account for work that is seasonal in nature due 
to choices made by the employers or the workforce. Three other 
commenters expressed concern that the emphasis on ``specific 
meteorological or climatic conditions'' was too limited because some 
crops, such as mushrooms, are grown indoors and, therefore, would not 
be affected by meteorological or climatic conditions. Commenters also 
noted that other crops, such as citrus fruit and other crops grown in 
warmer climates such as Florida and California, have to be harvested 
because of their specific growth cycle rather than due to 
meteorological or climatic conditions. Another commenter noted that 
Webster's dictionary defines a ``season'' as ``a period of the year 
characterized by or associated with a particular activity or 
phenomenon.'' Two commenters noted that fern harvesting in Volusia 
County, Florida is an example of a seasonal activity that is an 
established annual pattern or event that occurs between November and 
June not because of weather conditions but because holidays occurring 
during that time create a higher demand for ferns.
    One commenter recommended that the Secretary either not define the 
term or conduct a study of the range of seasonal employment so as to 
develop a better definition. Other commenters suggested amending the 
definition to include other reasons for seasonal farmwork such as 
growth cycles. Another commenter suggested changing the word 
``meteorological'' to ``weather.''
    Discussion: While disagreeing with some of the commenters examples, 
which the Secretary believes are ``temporary'' rather than ``seasonal'' 
employment, the Secretary agrees with the commenters that the language 
of the proposed definition may have been too limited. The Secretary has 
revised the definition to reflect the commenters' underlying concerns, 
and a definition of seasonal employment used by the Department of Labor 
[see 29 CFR Section 500.20(s)(1)], so as to better describe what 
constitutes seasonal employment.
    Changes: The definition of seasonal employment has been changed to 
state that seasonal employment is employment that occurs only during a 
certain period of the year because of the cycles of nature and that, by 
its nature, may not be continuous or carried on throughout the year.
    Section 200.81(k) Temporary employment.
    Comments: Many commenters expressed concern about the provision in 
Sec.  200.81(k) that an SEA may only deem specific types of employment 
to be temporary if it (1) documents through an annual survey that, 
given the nature of the work, virtually no workers who perform this 
work remain employed more than 12 months even if the work is available 
on a year-round basis, and (2) conducts this survey separately for each 
employer and job site. Commenters stated that conducting the proposed 
annual survey at each job site would be extremely costly and labor-
intensive, particularly on dairy farms, because of the large number of 
sites at which States would be required to conduct the survey. Some 
commenters suggested that there would be substantial administrative 
costs and staff time associated with conducting the annual surveys and 
that, because the proposed regulations would not have provided for 
additional funds to pay for costs of conducting the surveys, the 
proposal would adversely affect the level of MEP services States could 
provide to needy children.
    Several other commenters observed that the proposed survey 
requirement represented an extreme and unwarranted change to existing 
Department practice, would be highly burdensome, and would eliminate 
many families from being identified or served. Still other commenters 
stated that the proposed requirement to conduct annual surveys (by 
individual job site) would be impossible to implement because employees 
and employers are often unwilling to give an SEA complete and valid 
data about turnover rates. One commenter questioned the practicality of 
expecting SEAs to conduct valid surveys of each employer and site. Two 
commenters noted that at every livestock processing plant in the Nation 
there are at least several workers who remain employed year round, and 
the commenter expressed concern that no child of a worker in these 
plants would be eligible to receive MEP services under the proposed 
regulation.
    Discussion: While section 1309(2) of the ESEA requires that a 
migratory worker move in order to obtain temporary or seasonal 
employment in agricultural or fishing work, the law does not define 
``temporary'' employment. As explained more fully in response to other 
comments, the temporary nature of employment that is sought or obtained 
is generally determined either by the worker or the employer. However, 
the Department also recognizes that there are other jobs, such as may 
exist in processing plants or dairy farms, in which the employment is 
constant and year-round but for various reasons workers typically do 
not stay long at these jobs.
    In consideration of employment in these kinds of jobs, the 
Department developed another way SEAs may determine that the employment 
an individual seeks or obtains is ``temporary'' for purposes of the 
MEP. In particular, the Department's most recent non-regulatory 
guidance permits SEAs, for jobs that are constant and year-round, to 
determine the work to be temporary on the basis of an ``industrial 
survey'' that establishes, from personnel data supplied by employers, a 
high turnover rate--at levels specified by the Department--for each job 
category.
    The Secretary's proposal in the NPRM responded to widespread 
dissatisfaction of local, State, and Federal program officials with 
this guidance. Much of this dissatisfaction has been due to the great 
difficulties, if not impossibility, of State or local MEP staff 
obtaining turnover data from employers, and the lack of completeness 
and accuracy of the data that employers did provide. The proposed 
regulation would not have required employers to provide such data. 
Indeed, the preamble to the NPRM [72 FR 25232] clarified the 
Secretary's intent that the necessary attrition data could be easily 
obtained from workers when SEA or local MEP staff conduct their annual 
updates to confirm eligibility and continued residency of eligible 
children identified previously--a task they regularly perform in order 
to compile accurate SEA and local program child counts and to determine 
if new qualifying moves have been made. Thus, the Secretary believes 
that the regulations as proposed addressed those pre-existing concerns 
and similar concerns raised by the commenters.
    Moreover, the Secretary does not believe that there will be 
substantial additional costs and data collection burden associated with 
the process the regulation permits for validating whether certain types 
of year-round work can be considered temporary

[[Page 44110]]

employment. Notwithstanding our use of the word survey in the proposed 
definition of temporary employment, we did not intend the validation 
process to be a complex and expensive effort that would require SEAs to 
gather a large amount of detailed personnel data annually from 
employers or workers. Rather, as imperfectly explained in the NPRM [72 
FR 25232], we envisioned that this validation process would involve 
asking only those workers whose children were determined eligible based 
on the seemingly year-round jobs that the State had previously 
designated as temporary (or the children themselves if they are the 
workers) the following simple question: has the worker remained 
employed by the same employer for more than one year.
    After further consideration of the comments, however, the Secretary 
believes that this definition can be revised to provide greater 
flexibility for States and still ensure that program objectives related 
to ensuring that workers are legitimately considered to have moved ``in 
order to obtain'' a ``temporary'' job are met. Accordingly, we have 
revised the definition to provide that instead of having to conduct 
annual surveys to document the temporary nature of work that is 
seemingly constant and year-round, an SEA now need only document, 
within 18 months after the effective date of this regulation and at 
least once every three years thereafter, that, given the nature of the 
work, of those workers whose children were previously determined to be 
eligible based on the State's prior determination of the temporary 
nature of such employment (or the children themselves if they are the 
workers), virtually no workers remained employed by the same employer 
more than 12 months.
    We will provide further details about recommended procedures--such 
as combining the process to validate that particular types of 
employment are temporary with existing eligibility checks and updates, 
and whether all or a sample of employers or job sites should be 
examined--in non-regulatory guidance.
    Change: The Secretary has revised the definition of temporary 
employment to clarify how an SEA may determine specific types of 
constant and year-round employment to be temporary. The SEA may do so 
if it documents, within 18 months after the effective date of this 
regulation and at least once every three years thereafter, that, given 
the nature of the work, of those workers whose children were previously 
determined to be eligible based on the State's prior determination of 
the temporary nature of such employment (or the children themselves if 
they are the workers), virtually no workers remained employed by the 
same employer more than 12 months.
    Comments: With respect to States' determination of whether certain 
year-round employment would be considered temporary, we asked in the 
NPRM for input on whether the terms ``a few months'' and ``virtually no 
workers * * * will remain employed more than 12 months'' should 
continue to be used for the final regulation, or whether and what 
firmer time limits, numbers, or percentages might be used instead. 
Several commenters responded to this question by recommending that 
these terms be removed because, as written, they were too vague, would 
create confusion, could provide opportunities for abuse, would be 
expensive to implement, and would exclude a large percentage of 
children currently considered eligible for the MEP by their States.
    Several commenters asked the Department to clarify the meaning of 
the term ``virtually no workers.'' One commenter suggested that the 
term is not quantifiable, and another indicated that a given percentage 
of employees leaving over the course of a year may be more or less 
significant given the overall size of the processing plant. Still 
another commenter expressed the opinion that, even though the 
Department indicated in the preamble to the NPRM that the term was used 
to avoid setting arbitrary limits, the term is tantamount to 
establishing an arbitrary 100 percent rate.
    Several commenters stated that it would be nearly impossible to 
classify food processing or dairy-farm work as temporary under the 
proposed definition because most processing plants and dairy farms 
employ at least a few workers for longer than 12 months. One commenter 
noted that the Department's own study of processing \2\ indicates that 
poultry processing has turnover rates from 50 percent to over 100 
percent.
---------------------------------------------------------------------------

    \2\ RTI International: ``Literature Review: Agricultural and 
Fish Processing,'' June, 2004. [Prepared for the U.S. Department of 
Education].
---------------------------------------------------------------------------

    Some commenters recommended either eliminating the proposed 
definition entirely and continuing to rely on the procedures outlined 
in current non-regulatory guidance, or establishing the non-regulatory 
guidance procedures by regulation. In this regard, several commenters 
recommended using the provisions of the industrial survey process 
contained in the current non-regulatory guidance, which specify a job 
as temporary if an employer provides information to the SEA that the 
job has greater than a 50 percent annual turnover rate. In the 
commmenters' opinions, the industrial survey process described in the 
current non-regulatory guidance establishes a clearer and easier method 
for determining whether year-round employment is temporary. Two 
commenters offered the opinion that a turnover rate of greater than 50 
percent was a clear indication of the temporary nature of work. Another 
commenter suggested using a turnover rate of 75 to 100 percent.
    Discussion: The Secretary appreciates the commenters' responses to 
the question in the NPRM. We do not agree, however, that the terms 
``virtually all'' and ``a few months''--as used in the definition of 
temporary employment--are overly vague or confusing or that they will 
result in abuse or excessive costs. While the terms ``virtually all'' 
and ``a few months'' are neither exact nor precisely quantifiable, 
these terms should be read to mean that 100 percent, or nearly 100 
percent, of workers with children identified as eligible under the 
program stay on the job generally for only a brief period of weeks or 
months, and only rarely stay for 12 months. The Secretary does not 
believe it is desirable to establish further regulatory limitations 
relative to these terms. Rather, as noted in the NPRM [72 FR 25232], 
the regulatory language will allow SEAs the flexibility they need to 
address situations such as the one raised by several commenters whereby 
a few workers in the dairy and food processing industries may remain 
employed by the same employer somewhat beyond 12 months. Moreover, by 
not requiring that 100 percent of workers no longer be employed after 
12 months, the regulation will allow the SEA to exercise some 
discretion to determine whether specific job categories can reasonably 
be considered temporary employment.
    As we have noted previously, the Secretary does not agree that 
procedures to determine whether specific types of year-round work are 
temporary will be expensive to implement, but we have revised the 
language of the definition to give greater flexibility as to how to do 
so.
    The Secretary also does not agree with the suggestions that 
turnover rates of ``greater than 50 percent'' or ``75 to 100 percent'' 
over a 12- or 18-month time period, as reflected in the Department's 
prior guidance for the MEP, are better measures for determining the 
temporary nature of work. As explained elsewhere in this preamble, such 
turnover rates,

[[Page 44111]]

based on data that employers have provided to the SEAs, are flawed. In 
this regard, according to information the Department received during a 
2004 meeting with representatives from various processing industries, 
it appears that their job turnover rates usually only take into account 
movement of workers in or out of a particular job; they do not usually 
account for situations in which the particular worker continues to 
remain employed by the employer at the same work site in a succession 
of jobs and, thus, is actually a permanent employee. Under this 
methodology, persons initially hired in jobs considered temporary based 
on high reported turnover rates as measured based on this flawed job 
turnover rate metric may in fact remain employed by the same employer 
for years--a situation indicative of permanent (constant year-round), 
not temporary, employment. Thus, continuing to rely on job-specific 
turnover rates is inappropriate. Given the flawed nature of the job 
turnover rates, the Secretary believes that examining whether persons 
hired to perform such jobs that the SEA believes, on some credible 
basis (such as market research), to be temporary employment continue to 
be employed for more than a year would be a better measure of whether 
it is reasonable to continue to identify and serve such workers' 
families under the program.
    Also, the Secretary notes that allowing the use of a turnover rate 
as low as 50 or 75 percent to establish a particular job as temporary 
employment would extend program eligibility to a substantial number of 
children (i.e., the children of the 25 or 50 percent of workers who 
remain employed year-round) who would not meet the definition of 
migratory child and therefore should not be considered eligible for the 
MEP. The Secretary therefore believes that the turnover rates specified 
in the current non-regulatory guidance are too low to establish the 
temporary nature of the work for the purpose of extending eligibility 
to the children of all workers in these jobs.
    Change: None.
    Comments: In the preamble to the NPRM [72 FR 25232], we also asked 
for input as to whether there are additional regulatory requirements 
that would improve the proposed annual survey by improving the quality 
and consistency of the data or by providing more effective methods to 
collect the data. In response, two commenters recommended that the 
definition of temporary employment be qualified by inserting the phrase 
``usually lasting no longer than 12 months'' which is consistent with 
the definition of temporary employment in the current non-regulatory 
guidance. Other commenters proposed that the definition of temporary 
employment include jobs that last for more than 12 months if a State 
can demonstrate either high turnover rates or a pattern of temporary 
work at the work site or by the worker. Two other commenters suggested 
that the time period for a job to be considered temporary be extended 
to 18 months. These commenters noted that, in some industries such as 
dairy, temporary employment can last for longer than 12 months and that 
the Department's proposal, consequently, would substantially reduce the 
number of eligible migrant children in certain geographic areas.
    Discussion: Given that eligibility for the MEP depends on a 
worker's move to a new location in order to seek or obtain temporary or 
seasonal employment in agricultural or fishing work, the Secretary 
believes that the time period in which individuals work in these jobs 
should be brief and not reflect employment that is constant and year-
round. While reflecting an approach that is more precise and less 
flexible than is contained in the non-regulatory guidance, the 
Secretary believes that someone who works for 12 months has year-round 
employment, and as such, 12 months represents the outside limit for 
distinguishing temporary employment from non-temporary employment. The 
Secretary believes this same 12-month limit should be applied to the 
validation process for determining whether certain types of employment 
available year-round can reasonably be deemed temporary. The Secretary 
notes that this requirement on the length of temporary work is 
consistent with the Department of Labor's definitions of temporary work 
in 29 CFR 500.20 and 20 CFR 655.100 for its migrant and seasonal 
farmworker programs.
    Given that the Secretary expects temporary employment to usually 
last briefly--for a few months--and that temporary employment lasting 
as long as 12 months is expected to be a rarity, the Secretary agrees 
to add the phrase ``but no longer than 12 months'' to the definition. 
However, as explained above, the Secretary cannot agree that employment 
that lasts for more than 12 months--e.g., for 18 months--should be 
considered temporary, and so also cannot agree that the period should 
be extended even if an SEA can demonstrate for this longer period 
either high turnover rates or a pattern of temporary work at the work 
site or by the worker. Of course, if a worker expresses an intent to 
have moved in order to work for a period of a few months (not greater 
than one year), the SEA could find the worker to have moved in order to 
obtain temporary work on the basis of the worker's purpose in making 
the move rather than on the basis of documenting attrition in such 
employment.
    We turn finally to comments expressing concern about the impact an 
absolute 12-month rule would have on children of workers in industries 
like the dairy industry, where workers are reported to stay in jobs 
somewhat longer than 12 months. While the commenters expressed concern 
about the impact of a definition of temporary work that is limited to 
12 months, they offer no specific data to corroborate their statements. 
The Secretary believes that establishing a 12-month time period is not 
only reasonable, but is concerned that, absent establishment of this 
time period, SEAs will continue to extend MEP eligibility to 
individuals who have moved to a new location with at best only a 
marginal purpose of obtaining temporary or seasonal employment. Given 
this concern about program integrity, the Secretary declines to accept 
the recommendation that the 12-month period be extended to 15 or 18 
months.
    Change: We are modifying the definition of temporary employment to 
clarify that such employment is for a limited period, usually lasting 
only a few months, and cannot last longer than 12 months.
    Comment: One commenter expressed concern about how the proposed 
validation process could be implemented in that, given the 
retrospective nature of the proposed annual survey, an SEA would need 
to wait a year to determine if a job could be considered temporary and, 
by then, the family will have moved away. The commenter suggested that 
the process, as proposed, was therefore unworkable.
    Discussion: The Secretary recognizes the commenter's concern; 
however the final regulation will require documenting the attrition 
only of those workers whose children were determined eligible (or the 
children themselves if they are workers) based on the workers' 
employment in those year-round jobs that the SEA, consistent with these 
regulations, had previously designated as temporary on some reasonable 
basis. If the SEA tries to question these workers 18 months later, the 
Secretary would agree the SEA may infer that those workers who have 
moved away and cannot be located are no longer employed at the same 
plant. These workers, then, would be deemed

[[Page 44112]]

to be part of the plant's worker attrition for that year and, so, would 
help support a determination that employment in that plant was 
temporary.
    Change: None.
    Comments: Several commenters recommended that States not be 
required to conduct annual surveys and should instead be allowed to 
establish their own methodology and criteria to document the temporary 
nature of employment. One commenter noted that States are in a better 
position than the Federal government to gauge local industry and 
substantiate whether employment is temporary. One of the commenters 
suggested that one way that States should be allowed to certify year-
round work as temporary would be through providing additional 
information on a supplemental form. Another suggested that we require 
States to conduct surveys to gather turnover rates every three years, 
as currently recommended in non-regulatory guidance, or permit 
recruiters to find work to be temporary based on conversations with 
other workers who confirm a high turnover rate. The commenter believed 
that these would be more realistic options than requiring the 
retrospective annual survey proposed in the NPRM.
    Discussion: As stated previously, the Secretary strongly believes 
that whether they are implemented once every three years or annually, 
the procedures for calculating turnover rates as described in the 
Department's current non-regulatory guidance for the MEP are 
unacceptably flawed. Therefore, the Secretary declines to make the 
specific change suggested by the commenter.
    However, the Secretary generally agrees that the final regulations 
can provide more flexibility regarding how an SEA may determine and 
validate the temporary nature of agricultural or fishing work. In 
particular, we are removing from the proposed regulation references to 
various examples of types of temporary employment and the suggestions 
that these are the only kinds of employment that can be considered 
temporary on the basis of a survey. Instead, the final regulations 
focus on the use of credible sources of information, including worker 
and employer affirmations as well as other reasonable determinations by 
the SEA. They also eliminate the references to an annual survey of 
employment that might be deemed temporary, notwithstanding that it 
appears to be constant and year-round, to be conducted separately for 
each employer and job site. Instead, these final regulations require 
SEAs to document, within 18 months of the effective date of these 
regulations and at least once every three years thereafter, that such 
employment can continue to be deemed temporary because virtually no 
workers whose children were determined eligible on the basis of such 
work deemed temporary (or the children themselves if they are such 
workers) remained employed by the same employer for over 12 months.
    Change: The Secretary has revised and simplified the definition of 
temporary employment by clarifying that: (1) such work is conducted for 
a limited time frame--usually only a few months but no longer than 12 
months--as stated by the employer or the worker, or as otherwise 
determined by the SEA on some reasonable basis; and (2) any work that 
is constant and year-round can only be considered temporary if the SEA, 
within 18 months after the effective date of this regulation and at 
least once every three years thereafter, documents that, given the 
nature of the work, of those workers whose children were previously 
determined to be eligible based on the State's prior determination of 
the temporary nature of such employment (or the children themselves if 
they are the workers), virtually no workers remained employed by the 
same employer more than 12 months.
    Comments: Three commenters requested clarification about the type 
of documentation a State would need to provide and the type of tests 
that a State would need to conduct to classify year-round employment as 
temporary. Commenters requested that the final regulations specify the 
content of the survey, the type of survey required, and the dates when 
surveys would be conducted.
    Discussion: The Secretary appreciates the commenters' detailed and 
constructive suggestions but believes that, given the greater 
flexibility now afforded by the final regulations, it would be better 
to address the commenters' concerns in non-regulatory guidance to be 
issued after the final regulations are issued.
    Change: None.
    Comments: Two commenters suggested that the States' recent 
voluntary changes in quality control processes including re-
interviewing, as well as such research as a Departmental study of the 
poultry processing industry,\3\ should be sufficient to demonstrate to 
the Department that processing is temporary employment.
---------------------------------------------------------------------------

    \3\ RTI International, op. cit.
---------------------------------------------------------------------------

    Discussion: The Secretary believes that neither the State's recent 
quality control improvements nor the research and information the 
Department has collected on the processing industries provide an 
adequate basis for the Department to conclude that the work that occurs 
at each processing plant throughout the Nation is temporary. In fact, 
based on discussions with researchers and meat-processing industry 
representatives, it is the Department's understanding that the degree 
to which a particular work activity in agricultural or fish processing 
is temporary or permanent varies greatly from plant to plant because of 
differences in how each site carries out the work activity (e.g., with 
a greater or lesser degree of mechanization) and the particular working 
conditions provided in each plant (e.g., salary, benefits, 
opportunities for advancement). Accordingly, the Secretary will require 
SEAs to use the validation process described in the final regulations.
    Change: None.
    Section 200.83 Responsibilities of SEAs to implement projects 
through a comprehensive needs assessment and a comprehensive State plan 
for service delivery.
    Comments: Several commenters addressed our proposal to require that 
an SEA include measurable program outcomes tied to the State's 
performance targets in its MEP Comprehensive Needs Assessment and 
Service Delivery Plan. One commenter stated that, while the proposed 
change seemed to assume that MEP services do not have measurable 
program outcomes, the proposed language was redundant with statutory 
requirements given that all States are required to include migratory 
children in the State accountability system. Three of the commenters 
stated that they recognize that there should be measurable program 
outcomes for MEP services. However, they also noted that the 
supplemental nature of the MEP--the fact that it often offers services 
for a relatively short period of time (e.g., in a summer program), at a 
limited level of engagement (e.g., in a 50-minute tutoring session 
three times a week during the regular school day), and through support 
services that are educationally related but are not themselves 
necessarily instructional--requires that any measurable program 
outcomes and performance targets for the MEP be realistic, and should 
not require precise quantification of results. These commenters were 
concerned that the proposed regulatory provision was overly inclusive 
and believed the Department should not overreach in its expectation 
that grantees establish quantifiable program goals, outcomes and 
targets.

[[Page 44113]]

    Discussion: The Secretary recognizes the supplemental nature of the 
MEP. As noted in the preamble to the NPRM [72 FR 25233], the proposed 
change to Sec.  200.83 simply conforms the regulatory language with the 
language in section 1306(a)(1)(D) of the ESEA, which requires that an 
SEA's comprehensive plan include both the specific performance targets 
it has established for all children (including migratory children) and 
its measurable program outcomes relative to those targets for the MEP. 
The change eliminates any ambiguity about whether a State must address 
measurable program outcomes in the MEP comprehensive plan that may have 
resulted from the inadvertent omission of the requirement in the prior 
regulations.
    Changes: None.
    Section 200.89(a) Allocation of funds under the MEP for fiscal year 
(FY) 2006 and subsequent years.
    Section 200.89(a)(1). Several commenters addressed our proposal in 
this section under which the Secretary would adjust, for purposes of 
making FY 2006 and subsequent year MEP awards, each SEA's FY 2002 base-
year allocation by applying a defect rate established through a State 
re-interviewing process to the State's 2000-2001 base-year child 
counts.
    Comments: Four commenters questioned whether it was appropriate for 
the Department to change, through regulations, the statutory procedure 
for calculating the FY 2006 allocations when several States have not 
conducted re-interviewing or submitted defect rates to the Secretary.
    Discussion: The Secretary appreciates the commenters' concern. 
However, this concern is largely addressed by the requirement in Sec.  
200.89(b)(1), which requires those few States that have not carried out 
a voluntary re-interviewing process and submitted a defect rate to the 
Secretary to do so as a condition for their continued receipt of MEP 
funds. We also note that currently only three States have not submitted 
defect rates, and one of these States, Rhode Island, has indicated it 
no longer wishes to operate an MEP because of its small number of 
migratory children.
    Changes: None.
    Comments: Two commenters expressed concern about using the State-
reported defect rates established through the voluntary re-interviewing 
process to adjust the 2000-2001 base-year child counts because a 
standard process was not employed by all States. Both commenters were 
concerned that not all States used independent re-interviewers. One of 
these commenters recommended that the Secretary require that every 
State use an independent re-interviewer to establish the State's defect 
rate. In this regard, the commenter noted that the Department was using 
an outside contractor to review the processes States used to develop 
their defect rates, and expressed the opinion that this use of a 
contractor reflected dissatisfaction by the Department with the defect 
rates as generated by disparate procedures. In the commenter's view, 
using the existing defect rates, which States developed using imperfect 
and disparate procedures, to adjust funding would be inappropriate.
    Discussion: As noted in the NPRM [72 FR 25234], the Secretary 
recognizes that the State defect rates the Secretary ultimately accepts 
will not perfectly correct the 2000-2001 migrant child counts. However, 
the Secretary firmly believes that their use will result in the 
distribution of FY 2006 and subsequent-year MEP funds in a way that 
better reflects the intent of the statutory allocation formula than 
would continued use of the original 2000-2001 base-year counts.
    As the commenter noted, the Secretary has used an outside 
contractor to review the SEA-submitted defect rates and the SEAs' 
associated re-interviewing and calculation procedures. However, this 
was done in order to obtain independent expert opinion as to whether 
each SEA's submitted defect rate was based upon adequate procedures and 
sufficient technical rigor.
    While it is true that not all SEAs submitting defect rates used 
independent re-interviewers, the Secretary does not believe that the 
decision not to do so should necessarily invalidate the defect rates 
they reported. Due to the voluntary nature of the re-interviewing 
initiative, the Secretary does not believe it is reasonable--or 
necessary--to require retrospective re-interviewing by all SEAs that 
did not use independent re-interviewers provided the Secretary is 
satisfied that the process an SEA used met reasonable standards for 
technical rigor and gives confidence that the reported defect rate is 
itself reasonable.
    However, under paragraph (b)(1) of this section, the Department 
will require any State with a defect rate the Secretary determines to 
be unacceptable, or that used procedures the Secretary determines to be 
unacceptable, to conduct another statewide retrospective re-
interviewing process. As the regulations are intended to ensure that 
these SEAs do this work in ways that are statistically and 
methodologically sound, this process will need to include, as a 
required element, the use of independent re-interviewers.
    Changes: None.
    Comments: Two commenters questioned the appropriateness of 
continuing to base FY 2006 and subsequent year allocations on the 2000-
2001 child counts. These commenters expressed concern that doing so 
would not appropriately direct MEP funding to States that have 
experienced substantial increases in their migratory child populations 
over the intervening years. The commenters noted that the estimated ten 
percent national average defect rate clearly suggests that non-eligible 
children are being served in many States at the expense of eligible 
children and that the use of the current formula does not allow the 
funds to flow appropriately to eligible children in the commenters' 
States. The commenters proposed that the provisions of the statute 
requiring allocations after FY 2002 to continue to be based on the 
2000-2001 child counts be amended to provide that funds ``follow the 
child'' based on use of updated yearly counts of migratory children.
    Discussion: The Secretary understands that the continued use of 
base-year allocation amounts derived from the States' 2000-2001 migrant 
child counts does not reflect the current distribution of migratory 
children in the States. However, unless the Secretary knows that a 
State would be receiving more MEP funds than it needs (see section 
1303(c)(2)(A) of the ESEA), section 1303(a)(2) of the ESEA requires the 
continued and exclusive use of the base-year counts for any fiscal year 
in which Congress has appropriated MEP funds in an amount less than or 
equal to the amount it appropriated for FY 2002. As the commenters 
note, eliminating the use of the base-year counts requires a statutory 
change. In this regard, the Department has requested that Congress, in 
the upcoming ESEA reauthorization, eliminate the requirement to make 
the MEP allocations using base-year child counts.
    Changes: None.
    Comment: One commenter recommended revising the regulations to 
permit, as was permitted under the ESEA as reauthorized in 1988 (Pub. 
L. 100-297), a State to have up to a five-percent error rate in its 
counts of eligible migratory children before the Department could 
impose any type of allocation adjustment. The commenter stated that a 
zero-percent error rate is unrealistic and that every industry has some 
non-zero error rate.

[[Page 44114]]

    Discussion: While section 1201(b)(1) of the ESEA as reauthorized by 
Public Law 100-297 (the Hawkins Stafford School Improvement Amendments 
of 1988) contained a provision for a five-percent error rate in State 
eligibility determinations, this provision was removed when Title I, 
Part C of the ESEA was subsequently reauthorized by Public Law 103-382 
(the Improving America's Schools Act). The provision also is not part 
of the current ESEA, and the Department does not have authority to 
adopt it by regulation. Such a regulation would also conflict with the 
clear intent of the statute that only children who meet the statutory 
definition of a migratory child may be identified and served with the 
limited funds appropriated for the MEP.
    Changes: None.
    Comments: While acknowledging that in some situations States made 
errors, both intentional and negligent, in determining the eligibility 
of students for the MEP, three commenters questioned whether the 
Department should be using the term ``defect rate'' to describe the 
findings of a State's re-interview process. These commenters suggested 
that the term ``disparity rate'' would be more appropriate because the 
rates do not in all cases demonstrate clear errors in eligibility but 
may simply represent a disparity between written records of eligibility 
determinations made several years ago and more recent attempts to 
verify the information by new interviews. The commenters noted several 
possible procedural and cultural reasons for the disparities, including 
the considerable time lag between the initial eligibility 
determinations and the re-interviews, a lack of adequate monitoring, 
and a lack of clarity in certain eligibility criteria provided by the 
Department.
    Discussion: The Secretary recognizes and appreciates the concerns 
raised by commenters but does not believe that the suggested change 
should be made. In the various announcements, guidance documents, and 
oral presentations the Department has made and provided to SEA 
officials on the re-interview initiative, the Department asked each 
State to determine, on the basis of reasonable sampling and re-
interview procedures, its ``defect rate'', i.e., the percentage of 
children in a State's re-interview sample that the SEA determined to be 
ineligible under its re-interview process. While acknowledging that an 
SEA's efforts might be subject to subsequent audit, the Department 
specifically left to each SEA the decision to determine when a 
disparity in the information received should be reflected in its State 
defect rate. The Secretary is confident that the States understood the 
meaning of ``defect rate'' when they undertook their efforts and that 
the phrase ``defect rate'', as used in the NPRM and these regulations, 
is appropriate.
    Changes: None.
    Section 200.89(a)(2). Four individuals or organizations submitted 
comments on Sec.  200.89(a)(2), which would require SEAs to use the 
results of the retrospective re-interviewing to conduct a thorough re-
documentation of the eligibility of all children for the MEP (and the 
removal of all ineligible children) included in the 2006-2007 MEP child 
counts.
    Comment: One commenter requested clarification of the term, 
``thorough re-documentation.'' The commenter stated his belief that 
given the cost of re-interviewing a sample of the State's migrant 
children, re-documenting the eligibility of all children in the State's 
migrant child count would be very expensive.
    Discussion: As discussed in the preamble to the NPRM [72 FR 25234], 
the Secretary intended the proposed requirement to conduct ``a thorough 
re-documentation'' to mean that, after completing its retrospective re-
interviewing, an SEA would examine its rolls of all currently 
identified migratory children and remove from the rolls all children it 
judges to be ineligible based on the types of problems identified in 
its retrospective re-interviewing as causing defective eligibility 
determinations. The Secretary expects that an SEA will be able to 
undertake this re-documentation effort, at little additional cost, when 
it carries out its annual activities to examine whether children 
previously identified as eligible in a prior performance year (and who 
would retain eligibility based on a 36-month eligibility period 
following a migratory move) still reside in the State and so are still 
eligible to be counted and served under the program. The Secretary has 
revised the language of this requirement in the final regulation in 
order to better explain the process required.
    Changes: The Secretary has revised Sec.  200.89(a)(2) to clarify 
that in carrying out the re-documentation, an SEA must examine its 
rolls of all currently identified migratory children and remove from 
the rolls all children it judges to be ineligible based on the types of 
problems identified in its statewide retrospective re-interviewing as 
causing defective eligibility determinations.
    Comment: Another commenter stated that the requirements in proposed 
Sec.  200.89(a)(2) are unnecessary, and that they should not apply to 
those States with a declining population of migratory children that 
have proactively implemented procedures to improve quality control.
    Discussion: The Secretary disagrees with the commenter. In order to 
demonstrate the integrity of the program statewide and nationally, it 
is necessary for all SEAs to carry out the requirements of this section 
to ensure the accuracy of the State counts of migrant children and the 
correctness of the State eligibility determination of each child. The 
fact that an SEA reports a non-zero percent as its defect rate based on 
a random sample of children included in its retrospective re-
interviewing implies statistically that the overall population of 
identified migratory children in the State will contain approximately 
this same percentage of ineligible children. An SEA, therefore, needs 
to generalize from its defect rate to estimate the percentage (and 
actual number) of ineligible children in its statewide population of 
migratory children and, then, based on application of the re-interview 
findings regarding the types of problems that caused the defect rate, 
search for, locate, identify, and stop serving (and remove from the 
rolls of eligible migratory children) all children found to be 
ineligible in the overall statewide population of identified migratory 
children. For example, finding 20 ineligible children out of a 
representative sample of 400 (i.e., 5 percent defect rate) implies 
that, out of an overall population of 5,000 identified migratory 
children, approximately 250 children (5 percent of 5000 and not just 
the 20 identified from the sample) would also be ineligible across the 
State. The SEA must, therefore, begin to implement a re-documentation 
process to identify and terminate services to all of these ineligible 
children.
    Changes: None.
    Comment: Two commenters questioned the value of the proposed re-
documentation requirement, given the burden and associated costs. One 
commenter stated that the requirement might be appropriate for certain 
high-risk grantees but not for all States participating in the MEP. The 
other commenter stated that the expense would be unnecessary, given the 
current level of attention that has already been focused on MEP quality 
control issues nationally. One commenter asserted that the annualized 
costs associated with data burden that we estimated for conducting re-
documentation were misleading because we had assigned costs to each 
State regardless of the size of a State's population of migratory

[[Page 44115]]

children. Both commenters also expressed concern that the costs of a 
thorough re-documentation would be very high for their respective 
States if meeting the requirement involved the same level of effort 
States expended when they conducted their voluntary re-interviewing.
    Discussion: The Secretary does not agree that the costs of the re-
documentation will be particularly high because, as noted previously, 
the re-documentation can be conducted at the same time that SEAs carry 
out their usual processes for updating the eligibility and continued 
residency of migratory children identified as eligible in a prior 
performance year. The Secretary also strongly believes that this re-
documentation effort is an essential step that must be implemented by 
all SEAs in order to ensure the accuracy and integrity of the States' 
programs and of the MEP nationally. Such re-documentation is necessary 
to ensure that MEP funds are used only to provide services to eligible 
migratory children. This is the case since any MEP funds used to serve 
ineligible children are not available to serve those who are eligible. 
Moreover, the provision of service to ineligible children, when 
ultimately discovered by Departmental monitoring or audit, may require 
SEAs and LOAs to return funds improperly expended, reductions in future 
MEP allocations, and the assessment of penalties and/or damages.
    Changes: None.
    Comment: One commenter suggested that the re-documentation 
requirement is unnecessary because, according to the commenter, it 
would be duplicative of current regulatory requirements that already 
require annual re-certification of eligibility of each migratory 
family.
    Discussion: While the ESEA generally requires that SEAs submit 
accurate counts of and serve only eligible migratory children, current 
Departmental regulations do not require, explicitly or implicitly, that 
SEAs re-certify the eligibility of migratory children annually. If an 
SEA includes a child in its State child counts based on a prior year's 
eligibility determination, the SEA must only confirm that the child has 
lived in the State during the reporting period and that the child made 
an eligible move not more than 36 months before reporting the child in 
the State's counts of migratory children. An SEA may conduct an annual 
re-certification as part of its State-established program requirements, 
and, in its MEP non-regulatory guidance, the Department has recommended 
that SEAs conduct such re-certifications as a voluntary quality control 
measure. However, MEP regulations have never required that States 
conduct re-certifications.
    Changes: None.
    Section 200.89(b) Responsibilities of SEAs for re-interviewing to 
ensure the eligibility of children under the MEP.
    Comment: One commenter objected to the re-interviewing requirements 
proposed in Sec.  200.89(b), stating that, in the commenter's opinion, 
requiring any further re-interviewing would constitute a waste of 
program funds given the amount of funds that have already been expended 
on the voluntary retrospective re-interviewing process. The commenter 
recommended eliminating the re-interviewing requirements.
    Discussion: The Secretary disagrees. The voluntary retrospective 
re-interviewing process was valuable in identifying serious 
deficiencies in eligibility determinations in a number of States, and 
it is necessary, from the point of fairness, to require it in Sec.  
200.89(b)(1) of all SEAs that did not participate voluntarily or did 
not provide what the Secretary determines to be an acceptable defect 
rate. Similarly, it is necessary to require prospective re-interviewing 
in Sec.  200.89(b)(2) to ensure a complete system of quality control. 
For reasons expressed elsewhere in this notice, the Secretary is 
satisfied that the costs associated with re-interviewing are reasonable 
and manageable.
    Change: None.
    Section 200.89(b)(1) Retrospective Re-interviewing. In all, six 
individuals or organizations submitted comments on the requirements in 
Sec.  200.89(b)(1), in which the Department proposed to establish 
certain minimum technical requirements regarding sample selection, re-
interview procedures, and reporting for retrospective re-interviewing.
    Comments: Four commenters supported the proposed requirement to 
conduct retrospective re-interviewing. One commenter stated that the 
proposal was a good idea and would make every State responsible for the 
re-interviewing process and its results. Two commenters indicated that 
the re-interviewing requirement would not apply to their State because 
the State had already conducted re-interviewing under the voluntary re-
interview initiative. Another commenter stated that she had no comments 
concerning the requirements unless the Department does not accept the 
commenter's State defect rate.
    Discussion: While the Secretary appreciates these supportive 
comments, they raise a concern that the language in paragraph (b)(1) of 
the proposed regulation was not sufficiently clear about which SEAs 
would need to conduct retrospective re-interviewing. We note those 
requirements here and have revised the language in the regulations to 
clarify the requirements.
    Under these regulations, retrospective re-interviewing will be 
required by: (1) Those few SEAs that do not implement the process 
voluntarily prior to the effective date of these final regulations; (2) 
any SEA that submitted a defect rate that the Secretary does not 
accept; and (3) any SEA implementing it as a corrective action of the 
Secretary based on prospective re-interviewing results [Sec.  
200.89(b)(2)(vii)] or other quality control checks [Sec.  
200.89(d)(7)].
    Currently, SEAs in only two States with operating MEPs have not 
conducted voluntary re-interviewing and submitted a defect rate to the 
Department. These two SEAs will be required to conduct retrospective 
re-interviewing once these final regulations have become effective. Of 
the remaining SEAs, i.e., those that conducted voluntary re-
interviewing and submitted their defect rates to the Secretary, the 
Secretary has been able to determine all but a small number to be 
acceptable. After these regulations become effective, the Secretary 
will notify those few SEAs that submitted unacceptable defect rates 
that, if the matter of their defect rates is not resolved, they, too, 
will need to conduct retrospective re-interviewing. Additionally, 
retrospective re-interviewing may be required of an SEA in the future 
as a corrective action if necessary under Sec.  200.89(b)(2)(vii) or 
Sec.  200.89(d)(7).
    Change: The Secretary has revised Sec.  200.89(b)(1)(i) to clarify 
that, in addition to those SEAs that have not yet conducted 
retrospective re-interviewing, any SEA that did so but submitted a 
defect rate that is not accepted by the Secretary will also be subject 
to the requirement to conduct retrospective re-interviewing. The 
revised regulation also now clarifies that the Secretary may require 
retrospective re-interviewing as a corrective action in order to 
respond to problems identified through the prospective re-interviewing 
process (Sec.  200.89(b)(2)(vii)) or through other quality control 
checks, including audit and monitoring findings of the Secretary (Sec.  
200.89(d)(7)).
    Comments: One commenter expressed concern about the sampling 
requirements for retrospective re-interviewing. This commenter stated 
that the proposed sample size for retrospective re-interviewing would 
be similar to the sample size for prospective re-interviewing and that

[[Page 44116]]

this would require each State to expend an additional 8,700 person 
hours annually.
    Discussion: The commenter has misunderstood the proposed sampling 
requirements and the amount of effort needed for both prospective and 
retrospective re-interviewing. First, the statement in the preamble to 
the NPRM [72 FR 25235] that an estimated 8,700 hours would need to be 
expended for prospective re-interviewing refers to the estimated total 
hours to be expended nationally across all States participating in the 
MEP, not to the effort to be expended by a single State. Second, the 
sample size and the estimated data burden for retrospective re-
interviewing are not the same as for prospective re-interviewing. 
Rather, both sample size and data burden on staff and migratory 
families are greater for retrospective re-interviewing than for 
prospective re-interviewing.
    As noted more clearly in the OMB information collection package 
[1810-0662] and the section of the NPRM entitled Paperwork Reduction 
Act of 1995 [72 FR 25238], we estimate that on average only 152 hours 
of staff time (and 25 hours of migrant parents' time across an 
estimated statewide sample of 50 migratory parents) per State will be 
needed to conduct prospective re-interviewing, while an estimated 
average of 1,580 staff hours and 150 person hours (across an estimated 
average statewide sample of 300 migrant parents) per State will be 
needed to conduct retrospective re-interviewing. As we have noted, 
however, most SEAs have already conducted their retrospective re-
interviewing process and will not incur this burden. Only those SEAs 
that have not conducted retrospective re-interviewing prior to the 
effective date of these final regulations, those SEAs that have a 
defect rate that the Secretary does not accept, or those under 
corrective actions that require retrospective re-interviewing will 
still have to meet the retrospective re-interviewing requirements 
established by these final regulations.
    Changes: None.
    Comments: One commenter stated that the costs associated with 
hiring independent re-interviewers to conduct retrospective re-
interviewing would be significant and would require States to divert 
funds and services away from migrant children. The commenter expressed 
the opinion that imposing these costs was inconsistent with the Summary 
of Potential Costs and Benefits in the NPRM, in which the Department 
stated that the proposed regulations would not add significantly to the 
costs of implementing the MEP. The commenter recommended either 
providing funds to States to hire independent re-interviewers or 
eliminating the requirement for independent re-interviewers except in 
cases where the Secretary determines a significant error rate.
    Discussion: Consistent with the need for retrospective re-
interviewing to ensure the integrity of a State's MEP, the Secretary 
believes that the use of independent re-interviewers is necessary in 
conducting retrospective re-interviewing. The Secretary recognizes that 
hiring and training interviewers independent of the initial eligibility 
determinations will be somewhat more expensive than using existing 
program personnel (although existing program personnel may still need 
to receive training in the re-interviewing process, and SEA or LEA 
staff already on-staff but paid from non-MEP funds (e.g., State/local 
audit staff, monitoring staff from other Federal or State programs) may 
also be considered independent re-interviewers). However, the Secretary 
believes that any extra costs incurred through the use of independent 
re-interviewers are an allowable and necessary use of MEP funds and 
justified by the need to establish the quality and impartiality of a 
State's re-interviewing process. In any case, the retrospective re-
interviewing is only to be conducted in situations where there are 
significant questions raised about the accuracy of a State's 
eligibility determinations as identified either through its ongoing 
quality control processes (including prospective re-interviewing) or 
because the State did not conduct a retrospective re-interviewing 
process that resulted in a defect rate that the Secretary accepts.
    Changes: None.
    Comment: One commenter asked that we clarify which year States must 
use for the target child count required for retrospective re-
interviewing.
    Discussion: The Secretary will determine which year's migrant child 
count an SEA must examine in retrospective re-interviewing based on the 
reason the SEA is being required to conduct such re-interviewing, i.e., 
if the SEA did not conduct retrospective re-interviewing prior to the 
effective date of this final regulation; if a previously submitted 
defect rate was found to be unacceptable based on the Department's 
review of the State's re-interviewing process; or if the Department 
requires it as a corrective action.
    Change: None.
    Section 200.89(b)(2) Prospective Re-interviewing. In all, 15 
individuals or organizations submitted comments on proposed Sec.  
200.89(b)(2), which would require annual prospective re-interviewing 
and establish certain minimum technical requirements regarding sample 
selection, re-interview procedures, reporting, and corrective actions.
    Comments: One commenter supported our proposal to require 
prospective re-interviewing because it would ensure that all States 
actively monitor their eligibility determinations. Two other commenters 
indicated that their States were already conducting prospective re-
interviewing on a sample of children annually.
    Discussion: The Secretary appreciates the commenters' expressions 
of support for the proposal to require prospective re-interviewing.
    Changes: None.
    Comments: Several commenters expressed concern that the prospective 
re-interviewing requirements would be costly and burdensome for States 
to implement. In some cases, the commenters based their concerns on 
their prior experiences with the Department's voluntary (retrospective) 
re-interviewing initiative. In other cases, commenters assumed that the 
8,700 hours referred to in the preamble to the NPRM represented the 
burden per State, rather than nationally. Several commenters also were 
concerned that their States, especially States with small MEP 
allocations or those with low MEP base-allocation amounts that have 
experienced influxes of migrant children since FY 2002, would not have 
sufficient funds to conduct extensive re-interviewing in order to 
verify eligibility and still be able both to continue to serve migrant 
children and identify and recruit eligible children for MEP services.
    Several of the commenters expressed concern about re-interviewing 
costs in light of the statement in the preamble to the NPRM [72 FR 
25235] that States would need to conduct prospective re-interviews of 
100 migrant families annually. These commenters stated that it would be 
too burdensome and expensive, and in some cases impossible, for States 
with small MEP allocations to conduct this number of re-interviews on 
an annual basis. Several commenters asked that the prospective re-
interviewing requirement either be eliminated or somehow modified to 
take into account the differences in the amounts of MEP funding that 
each State MEP receives. Several commenters suggested increasing each 
State's MEP allocation to cover the costs associated with prospective 
re-interviewing. One commenter recommended including a specific line 
item for this task.

[[Page 44117]]

    Discussion: The Secretary does not agree that the prospective re-
interviewing process required in Sec.  200.89(b)(2) will be overly 
burdensome. As noted elsewhere in this preamble, as well as in the 
preamble to the NPRM [72 FR 25234], the Secretary believes that 
prospective re-interviewing constitutes an essential activity in an 
overall system of quality control.
    In reviewing these comments, however, we believe there were some 
misunderstandings regarding the regulatory requirements and associated 
burden costs of prospective re-interviewing.
     First, commenters appeared to believe that prospective re-
interviewing will be as extensive and difficult as the voluntary 
retrospective re-interviewing that most SEAs carried out prior to 
issuance of this regulation;
     Second, commenters appeared to believe that the burden for 
prospective re-interviewing will be an average of approximately 8,700 
hours per State, rather than nationally; and
     Third, there was a misunderstanding that each SEA would be 
required to prospectively re-interview 100 families per year.
    With regard to the first concern, the Secretary recognizes that the 
voluntary retrospective re-interviewing process that most SEAs 
conducted was costly and time-consuming. That was the case because the 
retrospective re-interviewing process entailed: (1) Using a statewide 
random sample and considerable over-sampling to ensure adequate 
replacement for those families that could not be located, so that the 
results could be generalized statewide; and (2) conducting re-
interviews after a considerable amount of time had passed between the 
initial eligibility determination and the re-interview. Prospective re-
interviewing, however, will not pose the same difficulties. As we 
stated in the preamble to the NPRM [72 FR 25235], the sample used for 
prospective re-interviewing (unlike the sample used for retrospective 
re-interviewing) does not need to be large enough to generalize to the 
statewide population of migratory children. Rather, it only needs to be 
of sufficient size and scope to serve as an early warning system for 
potential eligibility problems. Additionally, SEAs can and should be 
conducting their prospective re-interviews relatively soon after the 
initial eligibility determination is made.
    With regard to the second concern, the Secretary believes the 
misunderstanding stems from a statement in the preamble to the NPRM [72 
FR 25235]--that the prospective re-interview burden would be less than 
8,700 hours annually--that was unclear. The 8,700 hours estimated to be 
required to conduct prospective re-interviewing represents the 
estimated annual burden in total nationally, not per State. As was 
noted more clearly in the section of the NPRM entitled Paperwork 
Reduction Act of 1995 [72 FR 25238] and in the OMB information 
collection package [1810-0662], we estimate that on average only 152 
hours of staff time (and 0.5 hours of time for each of 50 migrant 
parents) per State per year would be needed to conduct prospective re-
interviewing.
    With regard to the third concern, the Secretary regretfully notes 
that the reference to prospective re-interviewing of 100 families in 
the preamble was an error. In fact, as included in the OMB information 
collection package [1810-0662] and identified in the section of the 
preamble to the NPRM entitled Paperwork Reduction Act of 1995 [72 FR 
25238], the Department's cost and burden estimates for prospective re-
interviewing are based on the expectation that, on average, only 50 
families would be prospectively re-interviewed per State per year. 
Accordingly, the language in the preamble to the NPRM should have 
provided that States ``on average'' would prospectively re-interview 
``on an annual basis * * * no more than 50 families.''
    Further, our use of the terms, ``no more than'' and ``on average'', 
when taken together, means that we recognize that under some 
situations, and especially in the case of States with small numbers of 
migrant children and, thus, small MEP allocations, an SEA may be able 
to draw meaningful inferences about the quality of recruiters' 
eligibility decisions from prospective re-interviews with fewer than 50 
families per year and still satisfy the regulatory requirement in Sec.  
200.89(b)(2)(ii) to annually sample a ``sufficient number of 
eligibility determinations'' randomly on a statewide basis or based on 
relevant subgroups. Conversely, an SEA in a State with a relatively 
large number of migrant children and, thus, with a relatively large MEP 
allocation may find it desirable to re-interview more than 50 families 
in order to obtain meaningful inferences about the quality of 
eligibility decisions that its recruiters are making. Issues of sample 
size will be more fully addressed in non-regulatory guidance on re-
interviewing after the publication of this final regulation.
    With regard to the other concerns regarding costs, we estimated in 
the OMB information collection package [1810-0662], which the NPRM 
invited the public to review and comment upon, that the average cost 
per State of the prospective re-interviewing (using the correct average 
of 50 families per State) will be about $2,300 annually. Given this 
estimate, the Secretary does not believe that any SEA will find its 
costs of undertaking prospective re-interviewing to be unmanageable, 
and so does not believe that this requirement will result in any 
significant reduction of direct services to migrant children. SEAs, of 
course, may use their State MEP allocations to pay for the cost of 
prospective re-interviewing.
    With regard to the recommendations to increase or specifically 
reserve funds to help States pay the cost of conducting prospective re-
interviewing, absent a statutory change the Secretary cannot increase a 
State's MEP allocation or specifically reserve funds to compensate for 
the small amount of MEP funds that each State participating in the MEP 
will have to use to pay for prospective re-interviewing. Nor could the 
Secretary increase each State's allocation unless the appropriation for 
the program increases.
    Changes: None.
    Comment: Two commenters asked whether the proposed regulations 
would require that States conduct two, overlapping prospective re-
interviewing processes--one activity to be conducted by MEP staff every 
year and a second activity to be conducted in a given year along with 
the first activity, at least every third year, by non-MEP re-
interviewers.
    Discussion: The regulations do not require two separate and 
overlapping procedures for conducting prospective re-interviewing. 
Section 200.89(b)(2) establishes one annual prospective re-interview 
process. In conducting the annual prospective re-interview process, the 
SEA must use independent re-interviewers, rather than MEP-funded re-
interviewers, to conduct that re-interviewing at least once every three 
years. So, for example, if an SEA uses MEP-funded re-interviewers to 
conduct the annual prospective re-interviews in years 1 and 2, it must 
use independent re-interviewers to conduct that process in year 3. In 
order to assist SEAs in implementing these new prospective re-
interviewing regulatory requirements, we will be issuing non-regulatory 
guidance regarding recommended re-interviewing processes following 
issuance of these final regulations.
    Changes: None.
    Comment: In response to our request in the NPRM for input on 
whether prospective re-interviewing should occur on a less frequent 
interval than

[[Page 44118]]

annually, several commenters stated that prospective re-interviewing 
should be required less frequently--e.g., either on a biennial basis or 
once every three years. One commenter recommended conducting re-
interviewing ``periodically.'' Another commenter suggested annual re-
interviewing is not necessary given the requirements in Sec.  
200.89(d), which establishes a number of other quality control 
procedures.
    Discussion: The Secretary appreciates the commenters' input. After 
due consideration of the comments, we have concluded that prospective 
re-interviewing may not occur less frequently than annually. A 
requirement that prospective re-interviewing be conducted only 
periodically would not be sufficiently precise. Requiring that the 
process be conducted biennially or even less frequently, rather than 
annually, would not be justified in light of the substantial benefit to 
program integrity that will accrue from conducting the process 
annually. In this regard, we cannot overemphasize that the national re-
interviewing initiative revealed significant problems with eligibility 
decisions in many parts of the nation. While we are confident that SEAs 
have taken seriously their responsibility to correct the underlying 
problems that created this situation, the Secretary believes that 
continued vigilance is still needed.
    Prospective re-interviewing is meant to identify, based on a review 
of a small sample of families with children found eligible for the MEP, 
potential problems with eligibility determinations early on--before 
they become severe. Hence, conducting prospective re-interviewing less 
frequently than annually would mean that SEAs would have less frequent 
opportunities to find potential eligibility determination problems, 
increasing the risk that an eligibility problem will fester or become 
more widespread and more difficult for the SEA to correct.
    Changes: None.
    Comment: Several commenters stated that they believed Sec.  
200.89(b)(2) was overly prescriptive. In particular, three commenters 
suggested that face-to-face re-interviews with migrant families are not 
necessary and that telephone interviews are sufficient. One of the 
commenters suggested that the Secretary modify the language of the 
regulation to provide that the SEA determines what constitutes a 
reasonable process for conducting prospective re-interviewing.
    Discussion: The Secretary does not agree that the provisions in 
this section are overly prescriptive. Rather, while the provisions do 
establish certain minimum requirements for prospective re-interviewing, 
they do so in such a way as to give SEAs considerable flexibility to 
establish a process that is reasonable based on State-specific 
circumstances, including the State's population of migrant children, 
and specific migratory patterns. For example, paragraph (b)(2)(ii), 
which describes minimum sampling requirements for prospective re-
interviewing, gives SEAs flexibility as to whether to test on a 
statewide basis or within particular categories and risk factors. It 
also suggests but does not require absolute use of any or all of 
several risk factors that might be used to define the particular 
categories on which re-interviewing might be focused in a given year.
    Despite the flexibility already offered in the NPRM, the Secretary, 
in response to the comments, has revised the language in paragraph 
(b)(2)(iii) to provide further flexibility by noting that an 
alternative to face-to-face interviewing may be used if face-to-face 
interviewing is determined to be impractical, and specifically noting 
telephone interviewing is one allowable alternative. This revision 
removes the language that was contained in the proposed regulations 
that required an SEA to show that extraordinary circumstances made it 
impractical to conduct face-to-face interviewing.
    Changes: The Secretary has revised paragraph (b)(2)(iii) to provide 
that SEAs must use a face-to-face approach to conduct prospective re-
interviews unless circumstances make the face-to-face re-interviews 
impractical and necessitate the use of an alternative method such as 
telephone re-interviews.
    Comment: Several commenters expressed concerns about the sample 
size requirements for prospective re-interviewing. One commenter 
recommended modifying the regulations to require a smaller sample size 
for prospective re-interviewing than the average of 100 families that 
the NPRM suggested. Three commenters expressed concerned that the 
proposed regulatory language regarding sample size was too imprecise, 
and recommended that the Secretary clearly define terms such as 
``random sampling'' and ``sufficient sample,'' and establish five 
percent or another specific percentage of families that each State must 
re-interview prospectively. One commenter asked that we clarify how the 
proposed requirement to use ``a statewide random sample with a 
confidence interval of 5 percent'' could be applied in a State with a 
large migrant population if only 100 families a year are re-
interviewed.
    Discussion: With respect to the comment regarding use of an average 
of 100 families for the sample size for re-interviewing, we previously 
noted that this reference was an error and that the correct sample size 
would generally be no more than 50 families, on average.
    The Secretary does not agree that the language in paragraph 
(b)(2)(ii) is imprecise; we believe this language provides an 
appropriate level of detail for a regulation and permits a State some 
flexibility depending on specific circumstances. By the term 
``sufficient sample,'' we mean a smaller and less precise sample than 
the one required for retrospective re-interviewing. We mean the term 
``random sample'' to have the meaning generally used in the field of 
statistics. This said, we intend to provide further guidance to States 
on random sampling, sample sizes, and other aspects of the re-
interviewing requirements in non-regulatory guidance following the 
issuance of these final regulations.
    The requirement to use a statewide random sample (at a 95 percent 
confidence level with a confidence interval of plus or minus five 
percent) refers only to the requirements for retrospective re-
interviewing; in contrast, for prospective re-interviewing the SEA need 
only select a sample of sufficient size and scope to enable the process 
to serve as an adequate early warning system about potential 
eligibility problems.
    Changes: None.
    Comment: Three commenters expressed concern about the costs and 
effort needed if independent re-interviewers (i.e., non-MEP personnel) 
are required for prospective re-interviewing.
    Discussion: As we have discussed previously, we do not believe that 
implementing the prospective re-interviewing requirement, including the 
provisions for use of independent re-interviewers, will create 
significant cost or burden particularly when compared to the benefit of 
using independent re-interviewers at least once every three years to 
verify the eligibility determinations for the sample selected. Using 
independent re-interviewers periodically allows States to avoid even 
the appearance of a possible conflict of interest in making decisions 
about program eligibility determinations that affect the size of grant 
and subgrant amounts and, thus, contributes to ensuring the ongoing 
integrity of the MEP. Also, such independent re-interviewers may 
already be on staff at an SEA or local site--e.g., monitoring or audit 
staff for another program--and so already have their salaries paid. 
They would be considered ``independent re-interviewers'' so long as 
they do not

[[Page 44119]]

operate or administer the MEP or are not responsible for the initial 
eligibility determinations they are reviewing.
    Changes: None.
    Comment: Three commenters objected to our proposal to require 
States to use re-interviewing as the sole or primary method for 
ensuring the quality of eligibility determinations. The commenters 
recommended that States' primary focus in ensuring quality should be on 
providing training and technical assistance to recruiters and other 
relevant personnel. The commenters indicated that a verification 
process should be undertaken, but not involve annual re-interviewing of 
substantial numbers of families. These commenters recommended that 
States be required to develop and implement a system of internal 
controls, such as testing of recruiters, certification of recruiters' 
training, checking recruiters' work and certificates of eligibility 
closely, and related activities, in order to ensure that procedures are 
appropriate and followed conscientiously. Additionally, the commenters 
recommended that we require States to more closely scrutinize 
eligibility determinations in geographic areas that experience a change 
in demographics, in areas where there are new recruiters, and in areas 
where there have been findings of mistakes.
    Three commenters stated that the institutionalization of the 
prospective re-interviewing process in regulations and requiring the 
reporting of a new ``defect rate'' each year would be unwarranted and 
detrimental. The commenters argued that if a family is deemed to be 
ineligible through the State's other existing quality control 
processes, the family should simply be removed from the list of 
children to be served. The commenters suggested that, if proper 
training and support are in place and the Department conducts 
appropriate site visit monitoring, there should be no noticeable or 
worrisome problems with the eligibility determination process in the 
future. The commenters recommended that the States be required to adopt 
a ``verification of eligibility plan'' that would be submitted to the 
Secretary for approval.
    Discussion: The Secretary is in general agreement with the 
commenters. The Secretary agrees that prospective re-interviewing is 
not and should not be the sole or primary focus of a State's MEP 
quality control process, and that it is important that SEAs examine 
eligibility determinations based on specific risk factors and other 
criteria. The Secretary believes that this approach is already 
reflected in the language in Sec.  200.89(d), which outlines the 
minimum components of a State's quality control system, and in Sec.  
200.89(b)(2)(ii), which indicates that the sample selected for 
prospective re-interviewing may be based on categories associated with 
particular risk factors. Additionally, the Secretary agrees that 
prospective re-interviewing should not need to involve annual re-
interviewing of ``substantial numbers'' of families--that 50 families 
per year would generally be sufficient.
    The Secretary does not agree that prospective re-interviewing is 
unnecessary or detrimental. As we explained in the NPRM and in this 
preamble, conducting prospective re-interviewing is essential, as one 
part of an SEA's overall quality control system, for maintaining a high 
degree of program integrity in the State and nationally. Conducting 
prospective re-interviewing annually is necessary to help promote SEA 
vigilance in checking on the accuracy of State MEP eligibility 
determinations shortly after they are made, rather than allowing 
several years to pass before eligibility problems can be identified and 
corrected.
    We note that the Department never intended the prospective re-
interviewing process to result in an annual computation of a ``defect 
rate.'' Rather, we intended it to serve as a part of an SEA's early 
warning system for eligibility problems. In this regard, if an SEA 
uncovers eligibility problems through prospective re-interviewing of 
the sample of children previously found eligible (or by the other 
review processes described in paragraph (d)), the SEA may have 
uncovered a problem that is far more pervasive than the ineligibility 
of the child or children on which the prospective re-interviewing 
focused. Simply removing these children from the rolls of eligible 
children as suggested by the commenters, without investigating whether 
the problem is broader, would not constitute a sufficient or 
responsible response to the findings. Instead, depending on the nature 
of the problems identified, the SEA must take corrective action as 
called for in paragraphs (b)(2)(vii) and (d)(7), including where 
appropriate, more extensive re-interviewing, to examine the extent of 
the problem, and then correct it.
    Finally, the Secretary declines to adopt the commenters' 
recommendation that we require States to develop and submit a 
``verification of eligibility plan,'' in place of the prospective re-
interviewing, since requiring the development and submission of such a 
plan would impose additional burden on States while not providing 
useful information other than a list of promised activities similar to 
those we have included in the regulations.
    Changes: None.
    Section 200.89(c) Responsibilities of SEAs to document the 
eligibility of migratory children.
    Comments: Ten commenters addressed the proposed provisions in Sec.  
200.89(c) establishing requirements for States to follow when 
documenting the eligibility of migrant children.
    Two commenters supported our proposal to require States to use a 
national COE. However, one of these commenters expressed concern 
regarding when and how the national COE would be developed and 
implemented. One commenter noted that the proposal for use of a 
national COE should provide greater consistency of information and 
training on completing the documentation.
    Several other commenters expressed concerns about the proposal to 
require use of a national COE. One commenter noted that each State has 
different patterns of work and mobility, and the information necessary 
for a determination of eligibility in one State may not be necessary in 
another State. Several commenters suggested that the Secretary 
establish a basic COE of required information that States could add to, 
but not subtract from, to document eligibility. Another commenter 
suggested that, rather than requiring the use of a single national 
form, the Department specify certain required data fields to be 
included on each State's individual form. Still another commenter 
suggested that, rather than require use of a national COE, the 
Department should allow States to submit their COEs to the Department 
for approval. According to the commenter, this approach would provide 
States with flexibility in developing the COE and still ensure that 
each State's COE contains the minimum data necessary to document 
eligibility.
    Several commenters stated that additional cost and effort will be 
required to change existing individual State forms to a national form 
and to align existing migratory student data systems to the national 
COE. One commenter noted that each subsequent change to a national COE 
would necessitate changes to the forms and databases used by the 
States.
    One commenter stated that we should not require parental signatures 
on the COE. The commenter noted that inclusion of the parental 
signature placed the burden for accuracy on the migratory parent, 
rather than on the program recruiter who completes the

[[Page 44120]]

COE. The commenter also stated that the COE would have to be translated 
into Spanish, so that parents who only speak Spanish could understand 
what they are signing. The commenter also noted that the Department 
should consider how the requirement would be applied if the migratory 
parents were illiterate.
    The commenter also suggested that the Department clarify the legal 
consequences if it finds that a COE completed by a recruiter and signed 
by the parent contains false information.
    One commenter expressed concern that the proposed COE does not 
include information about how the data collected will be shared. The 
commenter believed that including such a statement on the COE was 
necessary under the Family Educational Rights and Privacy Act (FERPA).
    Finally, one commenter requested that we clarify what would be 
considered ``additional documentation'' under Sec.  200.89(c)(2). The 
commenter stated that without this clarification, the commenter's 
agency would be unable to assess the impact of this aspect of the 
proposed regulation. Another commenter also stated that this term could 
be interpreted differently from State to State and, therefore, 
suggested that it be clarified.
    Discussion: As discussed in the NPRM [72 FR 25235], the Secretary 
believes that the establishment and use of a national COE, as proposed 
in Sec.  200.89(c)(1), are necessary to (1) ensure consistency among 
the various State programs in recording, retaining and transferring MEP 
records; and (2) help prevent incorrect eligibility decisions that 
might occur because of a State's use of a COE the SEA had produced that 
is not fully adequate. The Secretary understands the desire expressed 
by commenters for continued use of their own States' COEs or for an 
alternative that would have the Secretary establish only the minimum 
content of their States' COEs. However, the Secretary believes that 
information gathered in the course of State audits and the national re-
interview initiative confirm that SEAs have used too many different 
iterations of COEs that in one way or another are problematic, and that 
program integrity now demands use of a common reporting form that all 
States will use when making determinations about migrant eligibility.
    The Secretary recognizes that the use of the national COE will 
require some SEAs to change somewhat their existing practices for 
documenting eligibility, and that these changes will have implications 
in the short run relative to costs and staff time. However, given that 
all SEAs have for many years voluntarily used some form of COE to 
document eligibility that contains most if not all the required data 
fields in the proposed national COE, the Secretary does not believe 
that costs and staff time (all of which may be paid with MEP funds) 
associated with substituting the national COE for their State COEs and 
revising their databases accordingly will be so great as to outweigh 
the advantages to the MEP as a whole of using a standard national COE.
    The Secretary thanks the commenters for their input on the final 
format and content of the COE, including the requirement for the COE to 
be signed by the parent. We are currently working with OMB to finalize 
this data collection and will be considering these comments in making 
revisions to the national COE. The public also will have a further 
opportunity to comment on the revised national COE and the associated 
information collection package [1810-0662] following the publication of 
these final regulations, and we will consider those comments as we 
finalize the data collection. Once the complete information collection 
package is approved by OMB, we will provide training and technical 
assistance on use of the national COE, on issues that include the need 
for the parental signature and the rights and responsibilities of COE 
signatories under FERPA and the False Claims Act, through non-
regulatory guidance and the Department's Migrant Education Resource 
Center (MERC).
    We now address comments about the meaning of the requirement in 
Sec.  200.89(c)(2) that the SEA and its operating agencies ``develop 
and maintain such additional documentation as may be necessary to 
confirm that each child found eligible for this program meets all of 
the eligibility definitions in Sec.  200.81,'' and that different 
States may require different information to be collected to document 
eligibility. We proposed this provision in recognition of the fact 
that, depending on the circumstances of individual children, a State 
may determine that documentation of a child's eligibility for the MEP 
requires more than the mere summary of a parental interview as recorded 
on the national COE. Such additional documentation might include, for 
example, information validating temporary employment, explaining the 
specific circumstances regarding personal subsistence or economic 
necessity, or re-interviewing results. The additional documentation 
requirement also permits inclusion of any other items of information 
currently collected by States that are, according to several 
commenters, not included on the national COE.
    Changes: None.
    Section 200.89(d) Responsibilities of an SEA to establish and 
implement a system of quality controls for the proper identification of 
eligible migratory children.
    Comments: Seven commenters addressed one or more elements of the 
proposed quality control requirements in Sec.  200.89(d).
    Three commenters indicated that the proposed quality control 
procedures in Sec.  200.89(d) would adequately ensure high quality in 
program eligibility determinations, and that their implementation, in 
concert with other suggestions these commenters made regarding the re-
interviewing requirements in Sec.  200.89(b), would reduce the need for 
substantial, annual face-to-face re-interviewing and thereby preserve 
program resources and reduce alienation from the program. One commenter 
recommended that the Department reconsider regulating on how SEAs 
implement quality control procedures. This commenter suggested that 
many States have addressed their previously identified quality control 
problems. The commenter also stated that the proposed regulatory 
requirements in this section would be costly to implement and would 
require States to reallocate program funds that are currently spent on 
services to children, without effectively reducing defective 
eligibility determinations beyond the current levels. This commenter 
also proposed that States that have effective quality control systems 
in place and can document a defect rate that is lower than the national 
average should be exempt from the proposed quality control requirements 
in this section.
    One commenter expressed concern that the formal process for 
resolving eligibility questions and distributing written rulings 
required in paragraph (d)(3) was overly prescriptive and burdensome. 
Another commenter, while expressing various concerns about the quality 
of the identification and recruitment practices in the commenter's 
State, suggested that the Secretary establish, by regulation, several 
additional quality control requirements regarding the qualifications, 
hourly pay, and training of recruiters.
    Discussion: As discussed in the preamble to the NPRM (72 FR 25236), 
the Secretary believes that, given that defective eligibility 
determinations were uncovered in virtually every State during the 
voluntary re-interviewing

[[Page 44121]]

initiative, it is necessary to establish, through regulation, a minimum 
set of responsibilities that all States must establish for quality 
control of their MEP identification and recruitment procedures. The 
Secretary recognizes that most SEAs are currently implementing some or 
all of these requirements voluntarily and that, in cases where an SEA 
is not now implementing one or more of the regulatory requirements, 
that SEA will face an increased expenditure of time, effort and funds 
to implement the other regulatory requirements of this section. 
However, given that the Secretary believes that the regulations 
represent a minimum set of requirements, the Secretary does not believe 
that situations noted by the commenters (having a defect rate lower 
than the national average, voluntarily implementing one or another 
quality control activity, or the increased effort and expenditures that 
would need to be devoted to implementing all of the proposed quality 
control procedures) justify exempting any SEA from the responsibility 
to establish and implement all of these quality control measures.
    Moreover, if, as the commenters suggest, most SEAs already have 
addressed their identified quality control problems by voluntarily 
implementing some or all of these procedures, the requirements in 
paragraph (d) will not place an undue burden on State and local MEP 
staff. This said, the Secretary agrees that the language in paragraph 
(d)(3), as proposed, may be overly prescriptive in that requiring 
written copies of all policy determinations to be transmitted to all 
LOAs might not always be needed in order to meet the basic intent of 
this regulatory provision--ensuring the sharing of SEA policy 
interpretations regarding program eligibility with local program 
personnel.
    Finally, the Secretary believes that more technical aspects of 
quality control, such as the qualifications and training of recruiters, 
are matters better addressed through suggested best practices in non-
regulatory guidance, rather than as regulatory requirements.
    Change: We have amended Sec.  200.89(d)(3) to remove the 
requirement that answers to eligibility questions be transmitted from 
the SEA to its LOAs in written form.
    Comment: None.
    Discussion: As part of our internal review of the final 
regulations, we have determined that a technical edit needed to be made 
to paragraph (d)(7) of Sec.  200.89 in order to clarify that the 
corrective actions mentioned in that paragraph may also result from 
monitoring or audit findings of the Secretary or the State.
    Changes: We have modified the language in paragraph (d)(7) to 
clarify that Federal monitoring or audit findings, as well as internal 
State audit findings and recommendations, may also trigger the SEA's 
process for implementing corrective actions.

Executive Order 12866

    Under Executive Order 12866, the Secretary must determine whether 
this regulatory action is ``significant'' and therefore subject to the 
requirements of the Executive Order and subject to review by OMB. 
Section 3(f) of Executive Order 12866 defines a ``significant 
regulatory action'' as an action likely to result in a rule that may 
(1) have an annual effect on the economy of $100 million or more, or 
adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local or 
tribal governments, or communities in a material way (also referred to 
as an ``economically significant'' rule); (2) create serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impacts of 
entitlement grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive order. The Secretary has 
determined that this regulatory action is significant under section 
3(f)(4) of the Executive order.
    We have reviewed these final regulations in accordance with 
Executive Order 12866. Under the terms of the order we have assessed 
the potential costs and benefits of this regulatory action.
    The potential costs associated with the final regulations are those 
resulting from statutory requirements and those we have determined to 
be necessary for administering this program effectively and 
efficiently.
    In assessing the potential costs and benefits--both quantitative 
and qualitative--of these final regulations, we have determined that 
the benefits of the regulations justify the costs.
    We have also determined that this regulatory action does not unduly 
interfere with State, local, and tribal governments in the exercise of 
their governmental functions.

Summary of Potential Costs and Benefits

    These regulations require SEAs to establish specific procedures to 
standardize and improve the accuracy of program eligibility 
determinations and clarify requirements for development of 
comprehensive statewide needs assessments and service delivery plans. 
The primary impact of the regulations is on SEAs that receive MEP funds 
and the children who are eligible for services under the MEP. By 
requiring SEAs to establish procedures to improve the accuracy of their 
eligibility determinations, the regulations will ensure that program 
funds and the services they fund are directed only to children who are 
eligible to receive services and reduce the possibility that children 
who are not eligible for services receive program benefits. The 
regulations issued through this notice also add clarity where the 
statute is ambiguous or unclear.
    The Department estimates that the additional annual cost to 
recipients to comply with these regulations will be approximately $4.5 
million:
     Adding measurable program outcomes to the State 
comprehensive MEP service delivery plan [Sec.  200.83] will cost 
approximately $600 annually in total across all SEAs;
     Re-interviewing samples of students [Sec.  200.89(b)] will 
cost approximately $220,000 annually in total across all SEAs;
     Documenting the eligibility of migratory children, 
including the use of a standard COE [Sec.  200.89(c)] will cost 
approximately $2.8 million annually in total across all SEAs; and
     Institution of specific quality control procedures [Sec.  
200.89(d)] will cost approximately $1.5 million annually in total 
across all SEAs.
    This estimate is based on and further explained in the information 
collection package required under the Paperwork Reduction Act of 1995 
and discussed in more detail elsewhere in this notice in the sections 
entitled Analysis of Comments and Changes and Paperwork Reduction Act 
of 1995.
    These regulations will not add significantly to the costs of 
implementing the MEP since we estimate that the SEAs are currently 
expending approximately these amounts implementing various eligibility 
determination activities, but the regulations will add significantly to 
the consistency of eligibility determinations by standardizing the 
eligibility determination process nationally. The activities required 
by these regulations will be financed through the

[[Page 44122]]

appropriation for Title I, Part C (MEP) and will not impose a financial 
burden that SEAs and local educational agencies will have to meet from 
non-Federal resources.
    The regulations will help maintain public confidence in the program 
and ensure its continued operational integrity. Department analyses 
have shown that, on average, close to 12 percent of the children 
identified by SEAs as eligible for services for school year 2003-04 did 
not meet the statutory eligibility criteria. The regulations provide a 
benefit by ensuring that program funds are directed only to eligible 
migratory children. Increased accuracy will also ensure that program 
funds are allocated in the proper amounts and to the locations where 
eligible children reside. If implementation of the regulations results 
in 12 percent of currently participating children being determined 
ineligible, then some $46 million annually (12 percent of the 
appropriation) would be redirected from services to statutorily 
ineligible children to serving children who meet the statutory 
criteria. Because the statute is intended to focus on eligible children 
who have a genuine need for services (as a result of having made a 
qualifying move), there is a clear societal benefit to ensuring that 
program funds are used only to serve eligible students.
    More specifically, society as a whole benefits when migratory 
children receive educational services targeted to their specific needs. 
As noted in numerous studies since the nineteen sixties,\4\ the 
migratory children who are eligible to receive program benefits 
constitute a particularly needy and vulnerable school population. 
Migrant families tend to live in poverty, speak limited English, and 
lack access to preventive medical care. Few children from migrant 
families attend preschool, and they are often enrolled in high-poverty 
schools. Migratory youth are at high risk for dropping out of school 
without attaining a high school diploma. Access to education can help 
mitigate the effect of these risk factors. Preschool education prepares 
small children for the demands of elementary education and encourages 
parents to become active learners along with their children. Children 
who receive educational services targeted to address their specific 
needs are more likely to be successful in school and to receive other 
marginal services, such as vaccinations and health screenings, that are 
associated with school attendance. Youth who complete high school 
generally earn more in their lifetime than those who don't earn a high 
school diploma. These regulations benefit society because they require 
safeguards to ensure that the neediest migrant children will be 
identified and receive the services that will help them succeed in 
school.
---------------------------------------------------------------------------

    \4\ See, for example, Invisible Children: A portrait of migrant 
education in the United States, National Commission on Migrant 
Education, U.S. Govt. Printing Office, Sept. 23, 1992; and The same 
high standards for migrant students: Holding Title I schools 
accountable, United States Department of Education, Washington DC, 
2002.
---------------------------------------------------------------------------

    There is also a potential cost to migratory children if these 
regulations are not enacted. In the absence of regulations, recipients 
have diluted the quantity and quality of services available to children 
who are legitimately eligible for services under the program by serving 
significant numbers of children who are not eligible. Since MEP 
services are only available to eligible children for a short period of 
time, preventing truly eligible migratory children from receiving the 
services they are entitled to may have an adverse effect on their 
educational attainment.

Paperwork Reduction Act of 1995

    The regulations listed in the following chart contain information 
collection requirements. Under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3507(d)), the Department of Education has submitted a copy of 
these sections to OMB for its review.

------------------------------------------------------------------------
                                   Collection
     Regulatory section            information           Collection
------------------------------------------------------------------------
Sec.   200.83...............  Requires SEAs to add  ``Migrant Education
                               measurable program    Program (MEP)
                               outcomes into the     Regulations and
                               comprehensive MEP     Certificate of
                               State plan for        Eligibility
                               service delivery.     (COE).'' OMB No.
                                                     1810-0662.
Sec.   200.89(b)(1).........  Requires SEAs to      ``Migrant Education
                               conduct               Program (MEP)
                               retrospective re-     Regulations and
                               interviewing.         Certificate of
                                                     Eligibility
                                                     (COE).'' OMB No.
                                                     1810-0662.
Sec.   200.89(b)(2).........  Requires SEAs to      ``Migrant Education
                               conduct prospective   Program (MEP)
                               re-interviewing.      Regulations and
                                                     Certificate of
                                                     Eligibility
                                                     (COE).'' OMB No.
                                                     1810-0662.
Sec.   200.89(c)............  Requires SEAs to      ``Migrant Education
                               document the          Program (MEP)
                               eligibility of        Regulations and
                               migratory children.   Certificate of
                                                     Eligibility
                                                     (COE).'' OMB No.
                                                     1810-0662.
Sec.   200.89(d)............  Requires SEAs to      ``Migrant Education
                               establish a system    Program (MEP)
                               of quality controls.  Regulations and
                                                     Certificate of
                                                     Eligibility
                                                     (COE).'' OMB No.
                                                     1810-0662.
------------------------------------------------------------------------

    Respondents to this collection consist of SEAs and their LOA 
subgrantees (usually, but not exclusively, LEAs) as well as parents of 
migratory children. The collection of information is necessary to 
accurately identify and serve eligible migratory children. The proposed 
frequency of response is no more than annually.
    The estimated total annual reporting and recordkeeping burden that 
will result from the collection of information is 510,456 hours. The 
estimated average burden hours per response are approximately 1,580 
hours per each of 15 State respondents (i.e., SEA and subgrantee 
staff), and 0.5 hours per each of 4,500 migrant parent respondents to 
address (on a one-time basis) the requirements of Sec.  200.89(b)(1) 
for retrospective re-interviewing. We estimate that it will require 
approximately 152 hours per each of 49 State respondents and 0.5 hours 
per each of 2,450 migrant parent respondents to address (annually) the 
requirements of Sec.  200.89(b)(2) for prospective re-interviewing. We 
estimate that it will require approximately 17,347 hours per each of 49 
States and 1.5 hours per each of 300,000 parents (overall) to address 
the requirements of Sec.  200.89(c) for documenting the eligibility of 
migratory children. We estimate that it will require approximately 
1,220 hours per each of 49 States to address (annually) the 
requirements of Sec.  200.89(d) to establish and implement adequate 
quality controls. We also estimate that the data burden associated with 
the proposed change in Sec.  200.83 to add measurable program outcomes 
into the comprehensive MEP State plan for service delivery will not 
total more than one hour per SEA.
    If you want to comment on the information collection requirements,

[[Page 44123]]

please address your comments to the Desk Officer for Education, Office 
of Information and Regulatory Affairs, OMB, and send via e-mail to 
[email protected] or via fax to (202) 395-6974. Commenters need 
only submit comments via one submission medium. You may also send a 
copy of these comments to the Department representative named in the 
FOR FURTHER INFORMATION CONTACT section of this preamble. We consider 
your comments on these proposed collections of information in--
     Deciding whether the proposed collections are necessary 
for the proper performance of our functions, including whether the 
information will have practical use;
     Evaluating the accuracy of our estimate of the burden of 
the proposed collections, including the validity of our methodology and 
assumptions;
     Enhancing the quality, usefulness, and clarity of the 
information we collect; and
     Minimizing the burden on those who must respond. This 
includes exploring the use of appropriate automated, electronic, 
mechanical, or other technological collection techniques or other forms 
of information technology; e.g., permitting electronic submission of 
responses.
    OMB is required to make a decision concerning the collections of 
information contained in these proposed regulations between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, to ensure that OMB gives your comments full consideration, 
it is important that OMB receives the comments within 30 days of 
publication.

Intergovernmental Review

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

Electronic Access to This Document

    You may view this document, as well as all other Department of 
Education documents published in the Federal Register, in text or Adobe 
Portable Document Format (PDF) on the Internet at the following site: 
http://www.ed.gov/news/fedregister.
    To use PDF you must have Adobe Acrobat Reader, which is available 
free at this site. If you have questions about using PDF, call the U.S. 
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in 
the Washington, DC, area at (202) 512-1530.
    You may also view this document in text or PDF at the following 
site: http://www.ed.gov/programs/mep/legislation.html.

    Note: The official version of this document is the document 
published in the Federal Register. Free Internet access to the 
official edition of the Federal Register and the Code of Federal 
Regulations is available on GPO Access at: http://www.gpoaccess.gov/nara/index.html.

(Catalog of Federal Domestic Assistance Number 84.011: Title I, 
Education of Migrant Children.)

List of Subjects in 34 CFR Part 200

    Administrative practice and procedure, Adult education, Allocation 
of funds, Children, Coordination, Education of children with 
disabilities, Education of disadvantaged children, Elementary and 
secondary education, Eligibility, Family, Family-centered education, 
Grant programs--education, Indians--education, Institutions of higher 
education, Interstate coordination, Intrastate coordination, Juvenile 
delinquency, Local educational agencies, Local operating agencies, 
Migratory children, Migratory workers, Neglected, Nonprofit private 
agencies, Private schools, Public agencies, Quality control, Re-
interviewing, Reporting and recordkeeping requirements, State-
administered programs, State educational agencies, Subgrants.

    Dated: July 18, 2008.
Kerri L. Briggs,
Assistant Secretary for Elementary and Secondary Education.

0
For the reasons discussed in the preamble, the Secretary amends part 
200 of title 34 of the Code of Federal Regulations as follows:

PART 200--TITLE I--IMPROVING THE ACADEMIC ACHIEVEMENT OF THE 
DISADVANTAGED

0
1. The authority citation for part 200 continues to read as follows:

    Authority: 20 U.S.C. 6301 through 6578, unless otherwise noted.

0
2. Revise Sec.  200.81 to read as follows:


Sec.  200.81  Program definitions.

    The following definitions apply to programs and projects operated 
under subpart C of this part:
    (a) Agricultural work means the production or initial processing of 
crops, dairy products, poultry, or livestock, as well as the 
cultivation or harvesting of trees. It consists of work performed for 
wages or personal subsistence.
    (b) Fishing work means the catching or initial processing of fish 
or shellfish or the raising or harvesting of fish or shellfish at fish 
farms. It consists of work performed for wages or personal subsistence.
    (c) In order to obtain, when used to describe why a worker moved, 
means that one of the purposes of the move is to seek or obtain 
qualifying work.
    (1) If a worker states that a purpose of the move was to seek any 
type of employment, i.e., the worker moved with no specific intent to 
find work in a particular job, the worker is deemed to have moved with 
a purpose of obtaining qualifying work if the worker obtains qualifying 
work soon after the move.
    (2) Notwithstanding the introductory text of this paragraph (c), a 
worker who did not obtain qualifying work soon after a move may be 
considered to have moved in order to obtain qualifying work only if the 
worker states that at least one purpose of the move was specifically to 
seek the qualifying work, and--
    (i) The worker is found to have a prior history of moves to obtain 
qualifying work; or
    (ii) There is other credible evidence that the worker actively 
sought qualifying work soon after the move but, for reasons beyond the 
worker's control, the work was not available.
    (d) Migratory agricultural worker means a person who, in the 
preceding 36 months, has moved, as defined in paragraph (g), from one 
school district to another, or from one administrative area to another 
within a State that is comprised of a single school district, in order 
to obtain temporary employment or seasonal employment in agricultural 
work, including dairy work.
    (e) Migratory child means a child--
    (1) Who is a migratory agricultural worker or a migratory fisher; 
or
    (2) Who, in the preceding 36 months, in order to accompany or join 
a parent, spouse, or guardian who is a migratory agricultural worker or 
a migratory fisher--
    (i) Has moved from one school district to another;
    (ii) In a State that is comprised of a single school district, has 
moved from one administrative area to another within such district; or
    (iii) As the child of a migratory fisher, resides in a school 
district of more than

[[Page 44124]]

15,000 square miles, and migrates a distance of 20 miles or more to a 
temporary residence.
    (f) Migratory fisher means a person who, in the preceding 36 
months, has moved, as defined in paragraph (g), from one school 
district to another, or from one administrative area to another within 
a State that is comprised of a single school district, in order to 
obtain temporary employment or seasonal employment in fishing work. 
This definition also includes a person who, in the preceding 36 months, 
resided in a school district of more than 15,000 square miles and 
moved, as defined in paragraph (g), a distance of 20 miles or more to a 
temporary residence in order to obtain temporary employment or seasonal 
employment in fishing work.
    (g) Move or Moved means a change from one residence to another 
residence that occurs due to economic necessity.
    (h) Personal subsistence means that the worker and the worker's 
family, as a matter of economic necessity, consume, as a substantial 
portion of their food intake, the crops, dairy products, or livestock 
they produce or the fish they catch.
    (i) Qualifying work means temporary employment or seasonal 
employment in agricultural work or fishing work.
    (j) Seasonal employment means employment that occurs only during a 
certain period of the year because of the cycles of nature and that, by 
its nature, may not be continuous or carried on throughout the year.
    (k) Temporary employment means employment that lasts for a limited 
period of time, usually a few months, but no longer than 12 months. It 
typically includes employment where the employer states that the worker 
was hired for a limited time frame; the worker states that the worker 
does not intend to remain in that employment indefinitely; or the SEA 
has determined on some other reasonable basis that the employment is 
temporary. The definition includes employment that is constant and 
available year-round only if, within 18 months after the effective date 
of this regulation and at least once every three years thereafter, the 
SEA documents that, given the nature of the work, of those workers 
whose children were previously determined to be eligible based on the 
State's prior determination of the temporary nature of such employment 
(or the children themselves if they are the workers), virtually no 
workers remained employed by the same employer more than 12 months.

0
3. Amend Sec.  200.83 as follows:
0
a. Redesignate paragraphs (a)(3) and (a)(4) as paragraphs (a)(4) and 
(a)(5), respectively, and add a new paragraph (a)(3).
0
b. Revise the introductory text of redesignated paragraph (a)(4).
    The revision and addition read as follows:


Sec.  200.83  Responsibilities of SEAs to implement projects through a 
comprehensive needs assessment and a comprehensive State plan for 
service delivery.

    (a) * * *
    (3) Measurable program outcomes. The plan must include the 
measurable program outcomes (i.e., objectives) that a State's migrant 
education program will produce to meet the identified unique needs of 
migratory children and help migratory children achieve the State's 
performance targets identified in paragraph (a)(1) of this section.
    (4) Service delivery. The plan must describe the strategies that 
the SEA will pursue on a statewide basis to achieve the measurable 
program outcomes in paragraph (a)(3) of this section by addressing--
* * * * *

0
4. Add Sec.  200.89 to read as follows:


Sec.  200.89  MEP allocations; Re-interviewing; Eligibility 
documentation; and Quality control.

    (a) Allocation of funds under the MEP for fiscal year (FY) 2006 and 
subsequent years. (1) For purposes of calculating the size of MEP 
allocations for each SEA for FY 2006 and subsequent years (as well as 
for supplemental MEP allocations for FY 2005), the Secretary determines 
each SEA's FY 2002 base allocation amount under section 1303(a)(2) and 
(b) of the Act by applying, to the counts of eligible migratory 
children that the SEA submitted for 2000-2001, the defect rate that the 
SEA reports to the Secretary and that the Secretary accepts based on a 
statewide retrospective re-interviewing process that the SEA has 
conducted.
    (2)(i) The Secretary conditions an SEA's receipt of final FY 2007 
and subsequent-year MEP awards on the SEA's completion of a thorough 
re-documentation of the eligibility of all children (and the removal of 
all ineligible children) included in the State's 2007-2008 MEP child 
counts.
    (ii) To carry out this re-documentation, an SEA must examine its 
rolls of all currently identified migratory children and remove from 
the rolls all children it judges to be ineligible based on the types of 
problems identified in its statewide retrospective re-interviewing as 
causing defective eligibility determinations.
    (b) Responsibilities of SEAs for re-interviewing to ensure the 
eligibility of children under the MEP.
    (1) Retrospective re-interviewing.
    (i) As a condition for the continued receipt of MEP funds in FY 
2006 and subsequent years, an SEA that received such funds in FY 2005 
but did not implement a statewide re-interviewing process prior to the 
enactment of this regulation, as well as an SEA with a defect rate that 
is not accepted by the Secretary under paragraph (a)(1) of this 
section, or an SEA under a corrective action issued by the Secretary 
under paragraph (b)(2)(vii) or (d)(7) of this section, must, within six 
months of the effective date of these regulations or as subsequently 
required by the Secretary,--
    (A) Conduct a statewide re-interviewing process consistent with 
paragraph (b)(1)(ii) of this section; and
    (B) Consistent with paragraph (b)(1)(iii) of this section, report 
to the Secretary on the procedures it has employed, its findings, its 
defect rate, and corrective actions it has taken or will take to avoid 
a recurrence of any problems found.
    (ii) At a minimum, the re-interviewing process must include--
    (A) Selection of a sample of identified migratory children (from 
the child counts of a particular year as directed by the Secretary) 
randomly selected on a statewide basis to allow the State to estimate 
the statewide proportion of eligible migratory children at a 95 percent 
confidence level with a confidence interval of plus or minus 5 percent.
    (B) Use of independent re-interviewers (i.e., interviewers who are 
neither SEA or local operating agency staff members working to 
administer or operate the State MEP nor any other persons who worked on 
the initial eligibility determinations being tested) trained to conduct 
personal interviews and to understand and apply program eligibility 
requirements; and
    (C) Calculation of a defect rate based on the number of sampled 
children determined ineligible as a percentage of those sampled 
children whose parent/guardian was actually re-interviewed.
    (iii) At a minimum, the report must include--
    (A) An explanation of the sample and procedures used in the SEA's 
re-interviewing process;
    (B) The findings of the re-interviewing process, including the 
determined defect rate;
    (C) An acknowledgement that, consistent with Sec.  200.89(a), the 
Secretary may adjust the child counts for 2000-2001 and subsequent 
years

[[Page 44125]]

downward based on the defect rate that the Secretary accepts;
    (D) A summary of the types of defective eligibility determinations 
that the SEA identified through the re-interviewing process;
    (E) A summary of the reasons why each type of defective eligibility 
determination occurred; and
    (F) A summary of the corrective actions the SEA will take to 
address the identified problems.
    (2) Prospective re-interviewing. As part of the system of quality 
controls identified in Sec.  200.89(d), an SEA that receives MEP funds 
must, on an annual basis, validate current-year child eligibility 
determinations through the re-interview of a randomly selected sample 
of children previously identified as migratory. In conducting these re-
interviews, an SEA must--
    (i) Use, at least once every three years, one or more independent 
interviewers (i.e., interviewers who are neither SEA or local operating 
agency staff members working to administer or operate the State MEP nor 
any other persons who worked on the initial eligibility determinations 
being tested) trained to conduct personal interviews and to understand 
and apply program eligibility requirements;
    (ii) Select a random sample of identified migratory children so 
that a sufficient number of eligibility determinations in the current 
year are tested on a statewide basis or within categories associated 
with identified risk factors (e.g., experience of recruiters, size or 
growth in local migratory child population, effectiveness of local 
quality control procedures) in order to help identify possible problems 
with the State's child eligibility determinations;
    (iii) Conduct re-interviews with the parents or guardians of the 
children in the sample. States must use a face-to-face approach to 
conduct these re-interviews unless circumstances make face-to-face re-
interviews impractical and necessitate the use of an alternative method 
such as telephone re-interviewing;
    (iv) Determine and document in writing whether the child 
eligibility determination and the information on which the 
determination was based were true and correct;
    (v) Stop serving any children found not to be eligible and remove 
them from the data base used to compile counts of eligible children;
    (vi) Certify and report to the Department the results of re-
interviewing in the SEA's annual report of the number of migratory 
children in the State required by the Secretary; and
    (vii) Implement corrective actions or improvements to address the 
problems identified by the State (including the identification and 
removal of other ineligible children in the total population), and any 
corrective actions, including retrospective re-interviewing, required 
by the Secretary.
    (c) Responsibilities of SEAs to document the eligibility of 
migratory children. (1) An SEA and its operating agencies must use the 
Certificate of Eligibility (COE) form established by the Secretary to 
document the State's determination of the eligibility of migratory 
children.
    (2) In addition to the form required under paragraph (a) of this 
section, the SEA and its operating agencies must maintain any 
additional documentation the SEA requires to confirm that each child 
found eligible for this program meets all of the eligibility 
definitions in Sec.  200.81.
    (3) An SEA is responsible for the accuracy of all the 
determinations of the eligibility of migratory children identified in 
the State.
    (d) Responsibilities of an SEA to establish and implement a system 
of quality controls for the proper identification and recruitment of 
eligible migratory children. An SEA must establish and implement a 
system of quality controls for the proper identification and 
recruitment of eligible migratory children on a statewide basis. At a 
minimum, this system of quality controls must include the following 
components:
    (1) Training to ensure that recruiters and all other staff involved 
in determining eligibility and in conducting quality control procedures 
know the requirements for accurately determining and documenting child 
eligibility under the MEP.
    (2) Supervision and annual review and evaluation of the 
identification and recruitment practices of individual recruiters.
    (3) A formal process for resolving eligibility questions raised by 
recruiters and their supervisors and for ensuring that this information 
is communicated to all local operating agencies.
    (4) An examination by qualified individuals at the SEA or local 
operating agency level of each COE to verify that the written 
documentation is sufficient and that, based on the recorded data, the 
child is eligible for MEP services.
    (5) A process for the SEA to validate that eligibility 
determinations were properly made, including conducting prospective re-
interviewing as described in paragraph (b)(2).
    (6) Documentation that supports the SEA's implementation of this 
quality-control system and of a record of actions taken to improve the 
system where periodic reviews and evaluations indicate a need to do so.
    (7) A process for implementing corrective action if the SEA finds 
COEs that do not sufficiently document a child's eligibility for the 
MEP, or in response to internal State audit findings and 
recommendations, or monitoring or audit findings of the Secretary.

    Authority: 20 U.S.C. 6391-6399, 6571, 7844(d); 18 U.S.C. 1001.

 [FR Doc. E8-16859 Filed 7-28-08; 8:45 am]
BILLING CODE 4000-01-P