[Federal Register Volume 83, Number 230 (Thursday, November 29, 2018)]
[Proposed Rules]
[Pages 61342-61346]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-25931]
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DEPARTMENT OF EDUCATION
34 CFR Part 200
RIN 1810-AB49
[Docket ID ED-2018-OESE-0079]
Title I--Improving the Academic Achievement of the Disadvantaged;
Education of Migratory Children
AGENCY: Office of Elementary and Secondary Education, Department of
Education.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department proposes to modify the current requirements
related to the responsibilities of State educational agency (SEA)
recipients of funds under title I, part C, of the Elementary and
Secondary Education Act of 1965, as amended (ESEA), to conduct annual
prospective re-interviews to confirm the eligibility of children under
the Migrant Education Program (MEP). Based on input from MEP
stakeholders, we propose to clarify who constitutes an independent re-
interviewer, and to reduce the costs and burden of prospective re-
interviews conducted by independent re-interviewers, while maintaining
adequate quality control measures to safeguard the integrity of program
eligibility determinations.
DATES: We must receive your comments on or before January 28, 2019.
ADDRESSES: Submit your comments through the Federal eRulemaking Portal
or via postal mail, commercial delivery, or hand delivery. We will not
accept comments submitted by fax or by email or those submitted after
the comment period. To ensure that we do not receive duplicate copies,
please submit your comments only once. In addition, please include the
Docket ID at the top of your comments.
Federal eRulemaking Portal: Go to www.regulations.gov to
submit your comments electronically. Information on using
Regulations.gov, including instructions for accessing agency documents,
submitting comments, and viewing the docket, is available on the site
under ``Help.''
Postal Mail, Commercial Delivery, or Hand Delivery: The
Department strongly encourages commenters to submit their comments
electronically. However, if you mail or deliver your comments about
these proposed regulations, address them to Patricia Meyertholen, U.S.
Department of Education, 400 Maryland Avenue SW, Room 3E315,
Washington, DC 20202.
Privacy Note: The Department's policy is to make all comments
received from members of the public available for public viewing in
their entirety on the Federal eRulemaking Portal at
www.regulations.gov. Therefore, commenters should be careful to include
in their comments only information that they wish to make publicly
available.
FOR FURTHER INFORMATION CONTACT: Patricia Meyertholen, U.S. Department
of Education, 400 Maryland Avenue SW, Room 3E315, Washington, DC 20202.
Telephone: (202) 260-1394. Email: [email protected].
If you use a telecommunications device for the deaf (TDD) or a text
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.
SUPPLEMENTARY INFORMATION:
Catalog of Federal Domestic Assistance (CFDA) Number: 84.011.
Invitation to Comment: We invite you to submit comments regarding
these proposed regulations. To ensure that your comments have maximum
effect in developing the final regulations, we urge you to identify
clearly the specific section or sections of the proposed regulations
that each of your comments addresses and to arrange your comments in
the same order as the proposed regulations.
We invite you to assist us in complying with the specific
[[Page 61343]]
requirements of Executive Orders 12866, 13563, and 13771 and their
overall requirement of reducing regulatory burden that might result
from these proposed regulations. Please let us know of any further ways
we could reduce potential costs or increase potential benefits while
preserving the effective and efficient administration of the
Department's programs and activities.
During and after the comment period, you may inspect all public
comments about these proposed regulations by accessing Regulations.gov.
You may also inspect the comments in person in room 3E315, 400 Maryland
Avenue SW, Washington, DC, between 8:30 a.m. and 4:00 p.m., Eastern
Time, Monday through Friday of each week except Federal holidays.
Please contact the person listed under FOR FURTHER INFORMATION CONTACT.
Assistance to Individuals with Disabilities in Reviewing the
Rulemaking Record: On request, we will provide an appropriate
accommodation or auxiliary aid to an individual with a disability who
needs assistance to review the comments or other documents in the
public rulemaking record for these proposed regulations. If you want to
schedule an appointment for this type of accommodation or auxiliary
aid, please contact the person listed under FOR FURTHER INFORMATION
CONTACT.
Background and Proposed Regulations
The Secretary proposes to amend the regulations in 34 CFR
200.89(b)(2), which pertain to an SEA's responsibilities for conducting
annual prospective re-interviews for children determined to be eligible
for the MEP, as part of the SEA's quality control system.
Final requirements for prospective re-interviewing were published
in the Federal Register on July 29, 2008 (73 FR 44102), and became
effective on August 28, 2008. In accordance with these requirements,
SEAs must, on an annual basis, validate current-year child eligibility
determinations through re-interviews for a randomly selected sample of
children previously identified as migratory. Under Sec.
200.89(b)(2)(i), at least once every three years, the annual
prospective re-interviews must be conducted by one or more independent
re-interviewers--that is, interviewers who are neither SEA nor local
operating agency staff working to administer or operate the State MEP
nor any other persons who worked on the initial eligibility
determinations being tested. The current regulations do not specify who
may conduct the annual prospective re-interviews in the years when an
independent re-interviewer is not required. However, the Department has
previously recommended to SEAs through guidance and technical
assistance \1\ that the independent re-interviewer should not have been
involved in the initial eligibility determination under review.
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\1\ See pages 35-36 of U.S. Department of Education, Office of
Elementary and Secondary Education, Office of Migrant Education,
Technical Assistance Guide on Re-interviewing: Washington, DC 20202
(https://results-assets.s3.amazonaws.com/tools/mep-reinterviewing-guide-dec-10.pdf).
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Prospective re-interviewing is required in order to provide a
quality control on the accuracy of an SEA's current-year eligibility
determinations (i.e., migratory children for whom the SEA approved a
Certificate of Eligibility during the current performance reporting
period) and to guide any needed corrective actions or improvements in a
State's migratory child identification and recruitment practices.
Prospective re-interviewing is one element of an SEA's quality control
system, which must also include the minimum requirements set forth in
34 CFR 200.89(d), such as training for recruiters and staff involved in
making eligibility determinations, and supervision and annual review
and evaluation of the identification and recruitment practices of
individual recruiters.
The 2008 requirements stemmed from the Department's concerns about
the accuracy and consistency of the processes SEAs had used to
determine the eligibility of migratory children and the counts of
children eligible for services that SEAs reported to the Department,
which were examined in 2004 by the Office of Elementary and Secondary
Education and the Office of Inspector General. The examination
uncovered widespread errors in program eligibility determinations. In
most cases, the errors seemed attributable to the poor training of
State and local personnel responsible for determining eligibility, weak
quality control procedures for reviewing child eligibility
determinations, and a lack of uniformity in the implementation of the
MEP eligibility requirements.
Although the accuracy and integrity of program eligibility
determinations has vastly improved since 2008, we believe prospective
re-interviews remain an essential part of an SEA's quality control
system. Maintaining adequate quality control in eligibility
determinations is essential to ensuring that MEP-funded services are
provided to children who meet the program eligibility criteria, and
that the level and quality of those services is not diluted by the
delivery of services to children who are not eligible to receive them.
In addition, the number of eligible migratory children, as reported by
SEAs, is a key factor in determining the amount of MEP funds awarded to
SEAs.
We are proposing these amendments to clarify for SEAs that
individuals conducting annual prospective re-interviews must be
individuals who were not involved in the initial eligibility
determination being reviewed, as a quality control measure. This
proposed change would codify the method the Department has previously
recommended to SEAs through guidance and technical assistance, and is
largely consistent with SEAs' current practices. To avoid confusion,
the proposed regulations also replace the reference to ``current-year''
eligibility determinations with the term ``current performance
reporting period (September 1 to August 31).'' A performance reporting
period, sometimes referred to as a child count year, is a more specific
timeframe: September 1 through August 31. This modification to the
regulatory language is consistent with the Department's technical
assistance and guidance on prospective re-interviewing, as well as
SEAs' current re-interviewing practices. By adding these clarifications
to the regulations, we intend to make this information as transparent
and accessible as possible.
We also propose to modify the requirement that SEAs use independent
re-interviewers at least once every three years. Instead, the
regulations would require the use of independent re-interviewers at
least once within the first three full performance reporting periods
(September 1 through August 31) following the effective date of a major
statutory or regulatory change, as determined by the Secretary, that
impacts program eligibility, in order to test eligibility
determinations made based on the changed eligibility criteria. The
entire sample of eligibility determinations to be tested by independent
re-interviewers would be drawn from children determined to be eligible
after the major statutory or regulatory change takes effect. This
change would reduce the frequency of the required use of independent
re-interviewers because after using independent re-interviewers at
least once within the first three full performance reporting periods
following a major statutory or regulatory change, SEAs would not be
required to use independent re-interviewers again until an additional
major statutory or
[[Page 61344]]
regulatory change is implemented that impacts child eligibility. We
believe that, by providing an impartial perspective from outside of the
program, independent re-interviewers continue to be valuable, but that
their perspective would be most beneficial in periods when changes to
program eligibility have been recently implemented. We believe that
independent re-interviewers' distance from the State or local
administration and operation of the program makes them more likely to
identify errors or misunderstanding of new or changed eligibility
criteria--particularly if those issues are systemic or statewide. After
independent re-interviewers identify eligibility issues and the SEA has
implemented corrective actions or improvements, as required by current
regulations in 200.89(b)(2)(vii), we believe sufficient quality control
can be maintained by the SEA's annual prospective re-interviews, which
may be conducted by SEA or local staff operating the MEP, as long as
those staff members did not work on the initial eligibility
determinations being tested. Finally, we propose to make this
requirement effective September 1, 2020, to allow SEAs that receive MEP
funds to complete their independent re-interviews of eligibility
determinations that were made after the effective date (July 1, 2017)
of the Every Student Succeeds Act.
Public Participation
In accordance with Executive Order 13777, ``Enforcing the
Regulatory Reform Agenda,'' the Department requested input from the
public and identified stakeholders on existing program regulations. As
part of that effort, on June 1, 2017, OESE staff contacted two of the
largest national organizations representing State MEP directors to
request input on whether, in their area of expertise, there are
regulations that are unnecessary or in need of revision, and whether
there are regulations that are particularly important for the
Department to keep in place. In response to this outreach, we received
responses from one organization, as well as MEP staff in one SEA. Their
proposed alternatives to the current prospective re-interviewing
requirements included modifying the timing, reducing the frequency, or
reducing the number of re-interviews that SEAs are required to
complete.
On June 22, 2017, the Department published in the Federal Register
a notice of evaluation of existing regulations (82 FR 28431),
requesting input on regulations that may be appropriate for repeal,
replacement, or modification. In response to this notice, we received
comments from the same national organization representing State MEP
directors that previously responded to the Department's June 1, 2017,
outreach. That organization again proposed alternatives to the current
prospective re-interviewing requirements, such as modifying the timing,
reducing the frequency, or reducing the number of re-interviews that
SEAs are required to complete.
In addition, we have received input during ongoing consultation
with State MEP directors on possible modifications to the prospective
re-interviewing requirements. Most recently, we received input during a
November 14, 2017, meeting with the MEP Coordination Work Group, a
group of nine State MEP directors who represent State MEP directors in
nine U.S. geographic regions.
Executive Orders 12866, 13563, and 13771
Regulatory Impact Analysis
Under Executive Order 12866, it must be determined whether this
regulatory action is ``significant'' and, therefore, subject to the
requirements of the Executive order and subject to review by the Office
of Management and Budget (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 stated in the
Executive order.
This proposed regulatory action is not a significant regulatory
action subject to review by OMB under section 3(f) of Executive Order
12866.
Under Executive Order 13771, for each new regulation that the
Department proposes for notice and comment or otherwise promulgates
that is a significant regulatory action under Executive Order 12866 and
that imposes total costs greater than zero, it must identify two
deregulatory actions. For Fiscal Year 2019, any new incremental costs
associated with a new regulation must be fully offset by the
elimination of existing costs through deregulatory actions. The
proposed regulations are not a significant regulatory action.
Therefore, the requirements of Executive Order 13771 do not apply.
We have also reviewed these regulations under Executive Order
13563, which supplements and explicitly reaffirms the principles,
structures, and definitions governing regulatory review established in
Executive Order 12866. To the extent permitted by law, Executive Order
13563 requires that an agency--
(1) Propose or adopt regulations only upon a reasoned determination
that their benefits justify their costs (recognizing that some benefits
and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society,
consistent with obtaining regulatory objectives and taking into
account--among other things and to the extent practicable--the costs of
cumulative regulations;
(3) In choosing among alternative regulatory approaches, select
those approaches that maximize net benefits (including potential
economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather
than the behavior or manner of compliance a regulated entity must
adopt; and
(5) Identify and assess available alternatives to direct
regulation, including economic incentives--such as user fees or
marketable permits--to encourage the desired behavior, or provide
information that enables the public to make choices.
Executive Order 13563 also requires an agency ``to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible.'' The Office of
Information and Regulatory Affairs of OMB has emphasized that these
techniques may include ``identifying changing future compliance costs
that might result from technological innovation or anticipated
behavioral changes.''
We are issuing these proposed regulations only on a reasoned
determination that their benefits would justify their costs. In
choosing among alternative regulatory approaches, we selected those
approaches that would maximize net benefits. Based on the analysis that
follows, the Department believes that these proposed regulations are
consistent with the principles in Executive Order 13563.
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We also have determined that this regulatory action would not
unduly interfere with State, local, and Tribal governments in the
exercise of their governmental functions.
In accordance with the Executive orders, the Department has
assessed the potential costs and benefits, both quantitative and
qualitative, of this regulatory action. The potential costs associated
with this regulatory action are those resulting from statutory
requirements and those regulatory requirements that we have determined
to be necessary for administering the Department's programs and
activities.
We anticipate that the proposed changes to these regulations will
reduce the cost and burden associated with prospective re-interviewing,
specifically the use of independent re-interviewers, for some SEAs.
While we believe that SEAs will be required to conduct independent re-
interviews less frequently under the proposed regulations than they are
required to currently, we cannot predict when statutory changes will
occur. Under the current and proposed regulations, to qualify as
``independent,'' the interviewers must be neither SEA nor 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. Although there is no Federal requirement
for SEAs to use a specific funding mechanism to support independent re-
interviewers, such as a contract, or to use out-of-State personnel who
require travel costs, several SEAs have chosen to use such methods and
personnel for independent re-interviews. For those SEAs that have
chosen to use more costly methods for independent re-interviews, we
anticipate that the reduced frequency of independent re-interviews will
result in reduced cost and burden. Further, we do not believe that
burden will be affected by the proposed change to clarify that annual
prospective re-interviews must not be conducted by individuals who were
involved in the initial eligibility determination being reviewed, as
this is consistent with the current practices of most SEAs.
Elsewhere in this section under Paperwork Reduction Act of 1995, we
identify and explain burdens specifically associated with information
collection requirements.
Clarity of the Regulations
Executive Order 12866 and the Presidential memorandum ``Plain
Language in Government Writing'' require each agency to write
regulations that are easy to understand.
The Secretary invites comments on how to make these proposed
regulations easier to understand, including answers to questions such
as the following:
Are the requirements in the proposed regulations clearly
stated?
Do the proposed regulations contain technical terms or
other wording that interferes with their clarity?
Does the format of the proposed regulations (grouping and
order of sections, use of headings, paragraphing, etc.) aid or reduce
their clarity?
Would the proposed regulations be easier to understand if
we divided them into more (but shorter) sections? (A ``section'' is
preceded by the symbol ``Sec. '' and a numbered heading; for example,
Sec. 200.89.)
Could the description of the proposed regulations in the
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in
making the proposed regulations easier to understand? If so, how?
What else could we do to make the proposed regulations
easier to understand?
To send any comments that concern how the Department could make
these proposed regulations easier to understand, see the instructions
in the ADDRESSES section.
Regulatory Flexibility Act Certification
The Secretary certifies that these proposed regulations would not
have a significant economic impact on a substantial number of small
entities. Because these proposed regulations would affect only States
and State agencies, the proposed regulations would not have an impact
on small entities. State and State agencies are not defined as ``small
entities'' in the Regulatory Flexibility Act.
Paperwork Reduction Act of 1995
As part of its continuing effort to reduce paperwork and respondent
burden, the Department provides the general public and Federal agencies
with an opportunity to comment on proposed and continuing collections
of information in accordance with the Paperwork Reduction Act of 1995
(PRA) (44 U.S.C. 3506(c)(2)(A)). This helps ensure that the public
understands the Department's collection instructions, respondents can
provide the requested data in the desired format, reporting burden
(time and financial resources) is minimized, collection instruments are
clearly understood, and the Department can properly assess the impact
of collection requirements on respondents.
These proposed regulations contain information collection
requirements that are approved by OMB under OMB control number 1810-
0662; these proposed regulations do not affect the currently approved
data collection.
A Federal agency may not conduct or sponsor a collection of
information unless OMB approves the collection under the PRA and the
corresponding information collection instrument displays a currently
valid OMB control number. Notwithstanding any other provision of law,
no person is required to comply with, or is subject to penalty for
failure to comply with, a collection of information if the collection
instrument does not display a currently valid OMB control number.
Section 200.89(b)(2) contains an information collection
requirement. This information collection has been approved by OMB
Control Number 1810-0662. The currently approved collection includes
cost and burden estimates based on annual prospective re-interviewing
which do not vary based on the specific personnel used for re-
interviews, including independent re-interviewers. As SEAs would still
be required to conduct prospective re-interviews on an annual basis
under the proposed regulations, our cost and burden estimates are
unchanged.
We estimate a standard number of hours to conduct re-interviews--
including multiple attempts to locate the family and travel to their
location (2 hours/child), analyze the findings (1 hour/child), and
summarize findings for annual reporting (2 hours/SEA). We estimate
costs based on a standard hourly rate for staff conducting re-
interviews ($10/hour) and a higher standard hourly rate for staff
responsible for analysis and reporting ($25/hour). Some SEAs have
elected to use more costly resources and methods when conducting
independent re-interviews, such as contracts with private organizations
and out-of-State personnel. Since these are not Federal requirements,
under the PRA, any increased costs associated with these resources and
methods were not factored into the cost and burden estimates in the
currently approved collection, and, accordingly, any decreased costs
associated with these resources and methods that would result from
their less frequent use under the proposed regulations also do not
affect the cost and burden estimates. Thus, the burden estimated in the
approved information collection remains unchanged.
[[Page 61346]]
Intergovernmental Review
This program is subject to Executive Order 12372 and the
regulations in 34 CFR part 79. One of the objectives of the Executive
order is to foster an intergovernmental partnership and a strengthened
federalism. The Executive order relies on processes developed by State
and local governments for coordination and review of proposed Federal
financial assistance.
This document provides early notification of our specific plans and
actions for this program.
Federalism
Executive Order 13132 requires us to ensure meaningful and timely
input by State and local elected officials in the development of
regulatory policies that have federalism implications. ``Federalism
implications'' means substantial direct effects on the States, on the
relationship between the National Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. The proposed regulations in Sec. 200.89(b) may have
federalism implications. We encourage State and local elected officials
to review and provide comments on these proposed regulations.
Accessible Format: Individuals with disabilities can obtain this
document in an accessible format (e.g., braille, large print,
audiotape, or compact disc) on request to the person listed under FOR
FURTHER INFORMATION CONTACT.
Electronic Access to This Document: The official version of this
document is the document published in the Federal Register. You may
access the official edition of the Federal Register and the Code of
Federal Regulations via the Federal Digital System at: www.gpo.gov/fdsys. At this site you can view this document, as well as all other
documents of this Department published in the Federal Register, in text
or Adobe Portable Document Format (PDF). To use PDF you must have Adobe
Acrobat Reader, which is available free at the site.
You may also access documents of the Department published in the
Federal Register by using the article search feature at:
www.federalregister.gov. Specifically, through the advanced search
feature at this site, you can limit your search to documents published
by the Department. (Catalog of Federal Domestic Assistance number
84.011: Education of Migratory Children)
List of Subjects in 34 CFR Part 200
Education of disadvantaged, Elementary and secondary education,
Grant programs-education, Indians-education, Infants and children,
Juvenile delinquency, Migrant labor, Private schools, Reporting and
recordkeeping requirements.
Dated: November 23, 2018.
Betsy DeVos,
Secretary of Education.
For the reasons discussed in the preamble, the Secretary proposes
to amend part 200 of title 34 of the Code of Federal Regulations as
follows:
PART 200--TITLE I--IMPROVING THE ACADEMIC ACHIEVEMENT OF THE
DISADVANTAGED
0
1. The authority citation for part 200 continues to read as follows:
Authority: 20 U.S.C. 6301 through 6576, unless otherwise noted.
0
2. Section 200.89 is amended by:
0
a. Revising paragraph (b)(2).
0
b. Adding paragraph (b)(3).
0
c. Revising the authority citation.
The revisions and addition read as follows:
Sec. 200.89 Re-interviewing; Eligibility documentation; and Quality
control.
* * * * *
(b) * * *
(2) Prospective re-interviewing. As part of the system of quality
controls identified in Sec. 200.89(d), an SEA must annually validate
child eligibility determinations from the current performance reporting
period (September 1 to August 31) through re-interviews for a randomly
selected sample of children identified as migratory during the same
performance reporting period using re-interviewers, who may be SEA or
local operating agency staff members working to administer or operate
the State MEP, or any other person trained to conduct personal
interviews and who understands program eligibility requirements, but
who did not work on the initial eligibility determinations being
tested. In conducting these re-interviews, an SEA must--
(i) Use one or more 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 and who are trained
to conduct personal interviews and to understand and apply program
eligibility requirements) at least once every three years until
September 1, 2020;
* * * * *
(3) Prospective re-interviewing following a major statutory or
regulatory change to child eligibility. Beginning September 1, 2020, an
SEA must use one or more independent re-interviewers (i.e.,
interviewers who are neither SEA nor 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 and who are trained to conduct personal interviews and to
understand and apply program eligibility requirements) to validate
child eligibility determinations at least once within the first three
full performance reporting periods (September 1 through August 31)
following the effective date of a major statutory or regulatory change
that directly impacts child eligibility (as determined by the
Secretary), consistent with the prospective re-interview process
described in paragraph (b)(2)(ii)-(vii) of this section. The entire
sample of eligibility determinations to be tested by independent re-
interviewers must be drawn from children determined to be eligible
after the major statutory or regulatory change took effect.
* * * * *
(Authority: 20 U.S.C. 6391-6399, 6571, 18 U.S.C. 1001)
[FR Doc. 2018-25931 Filed 11-28-18; 8:45 am]
BILLING CODE 4000-01-P