4000-01-U

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.

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 (INSERT DATE 30 DAYS AFTER DATE
OF PUBLICATION IN THE FEDERAL REGISTER). However, affected parties do
not have to comply with the new information collection requirements in
§§200.83 and 200.89 until the Department of Education publishes in the
[Federal Register]{.underline} 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: james.english@ed.gov.

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]{.underline} (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 §200.81 to add to and improve program definitions governing
    who is considered an eligible migratory child.

-   Amending §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 §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 §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.

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-   Adding a new §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 §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]{.underline} and [fishing
    work]{.underline} in §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]{.underline} and [move or
    moved]{.underline} in §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]{.underline} in
    §200.81(d) has been revised to clarify that agricultural work
    includes dairy work.

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-   The definition of [principal means of livelihood]{.underline} in
    proposed §200.81(i) has been removed.

-   The definitions of [migratory agricultural worker]{.underline} and
    [migratory fisher]{.underline} in §§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 §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]{.underline} 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]{.underline}, we
    have added a new definition of [qualifying work]{.underline} in
    §200.89(i) to mean temporary employment or seasonal employment in
    agricultural work or fishing work.

-   The definition of [seasonal employment]{.underline} in §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]{.underline} in §200.81(k)
    has been 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]{.underline} section that follows.

[Analysis of Comments and Changes]{.underline}

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]{.underline}.

[Comments]{.underline}: 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]{.underline} 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]{.underline}: 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]{.underline}: None.

[Paperwork Burden and Potential Costs and Benefits]{.underline}.

[Comments]{.underline}: 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 §200.81(k), regarding the definition of
[temporary employment]{.underline}, 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 §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]{.underline}: 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 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 §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]{.underline}: None.

### §200.81 Program definitions. 

§200.81(a) and (b) \-- Agricultural work and Fishing work.

[Comments]{.underline}: 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]{.underline} 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]{.underline}
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]{.underline}, 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]{.underline} 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]{.underline} because these activities are conducted for personal
subsistence.

[Discussion]{.underline}: 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.

With respect to the last sentence of the definitions of both
[agricultural work]{.underline} and [fishing work]{.underline} 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]{.underline} 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]{.underline}: The definitions of [agricultural
work]{.underline} in §200.81(a) and [fishing work]{.underline} in
§200.81(b) have been revised to remove the language "generally" and "in
rare cases" from the last sentence of the definition.

[§200.81(c) In order to obtain]{.underline}.

[Comments]{.underline}: We received a number of comments about our
proposed definition of [in order to obtain]{.underline}. 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]{.underline} 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]{.underline} 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]{.underline}: The Secretary continues to believe, as
expressed in the NPRM \[72 FR 25231\], that the statutory definition of
a [migratory child]{.underline} 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 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]{.underline} 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]{.underline}. 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]{.underline}:  The Secretary has revised the definition of [in
order to obtain]{.underline} 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]{.underline}: Two commenters expressed concern that the second
sentence of the proposed definition of [in order to obtain]{.underline}
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]{.underline}:  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]{.underline}:  The Secretary has revised the definition of [in
order to obtain]{.underline} 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. 

§200.81(d) Migratory agricultural worker.

[Comments]{.underline}: Several commenters expressed concern that the
proposed removal of the phrase "including dairy work" from the
definition of a [migratory agricultural worker]{.underline} would lessen
the acceptance of such work as an appropriate migratory activity even
though the definition of [agricultural work]{.underline} refers to "the
production or initial processing of . . . [dairy products]{.underline}
\[emphasis added\]." These commenters asked that the Secretary not
remove this phrase.

[Discussion]{.underline}: The proposed removal of the reference to dairy
work from the definition of [migratory agricultural worker]{.underline}
was purely editorial given that the proposed new definition of
[agricultural work]{.underline} 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]{.underline}: We have modified the definition of [migratory
agricultural worker]{.underline} to include a reference to "dairy work."

§200.81(e) Migratory child.

[Comments]{.underline}: Several commenters expressed support for the
proposed definition of a [migratory child,]{.underline} noting 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]{.underline}: 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]{.underline} 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 §200.83), as well as §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]{.underline}: None.

[§200.81(f) Migratory fisher]{.underline}.

[Comments]{.underline}: One commenter expressed concern that the
proposed definition of a [migratory fisher]{.underline} 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]{.underline}: 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]{.underline}: None.

§200.81(g) Move or Moved.

[Comments]{.underline}: We received a number of comments on the proposed
definition of [move or moved]{.underline}. 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]{.underline} was inconsistent with the proposed definition of [in
order to obtain]{.underline}. They commented that the proposed
definition of [move or moved]{.underline} 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]{.underline} 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]{.underline} 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]{.underline} 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
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]{.underline}: The statutory definition of
[migratory]{.underline} [child]{.underline} 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.

In reviewing the comments, the Secretary agrees that the proposed
definition was inconsistent with the definition of [in order to
obtain]{.underline}. To address the concerns raised by the commenters,
we are revising the definition of [move or moved]{.underline} 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]{.underline}.

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]{.underline}: The Secretary has revised the definition of [move
or moved]{.underline} 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.

§200.81(h) Personal subsistence.

[Comments]{.underline}: 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]{.underline} or
changing the phrase "in order to survive" to "as an important part of
personal consumption."

[Discussion]{.underline}: 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]{.underline} and [fishing
work]{.underline}, which specifically provide that the work must be
performed only for wages or personal subsistence.

[Changes]{.underline}: We have revised the definition of [personal
subsistence]{.underline} 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.

§200.81(i) Principal means of livelihood.

[Comments]{.underline}: Several commenters recommended that we eliminate
the definition of [principal means of livelihood]{.underline} and remove
the term from the definitions of [migratory agricultural
worker]{.underline} and [migratory fisher]{.underline}. (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]{.underline}: The proposed definition of [principal means of
livelihood]{.underline} 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]{.underline} 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]{.underline}: The definition of [principal means of
livelihood]{.underline} in proposed §200.81(i) has been deleted and the
term has been removed from the definitions of [migratory agricultural
worker]{.underline} and [migratory fisher]{.underline}.

§200.81(i) Qualifying work.

[Comments]{.underline}: None.

[Discussion]{.underline}: As revised, the definition of the phrase [in
order to obtain]{.underline} 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.

[Change]{.underline}: A new definition of [qualifying work]{.underline}
has been added in new §200.81(i) that provides that such work means
temporary employment or seasonal employment in agricultural work or
fishing work.

§200.81(j) Seasonal employment.

[Comments]{.underline}: Two commenters supported our proposed definition
of [seasonal employment]{.underline}. 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]{.underline}: 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]{.underline} used by the Department of Labor \[see 29 CFR
Section 500.20(s)(1)\], so as to better describe what constitutes
seasonal employment.

[Changes]{.underline}: The definition of [seasonal
employment]{.underline} 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.

§200.81(k) Temporary employment.

[Comments]{.underline}: Many commenters expressed concern about the
provision in §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]{.underline}: 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 employment. Notwithstanding
our use of the word survey in the proposed definition of [temporary
employment]{.underline}, 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]{.underline}: The Secretary has revised the definition of
[temporary employment]{.underline} 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]{.underline}: 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.

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]{.underline}: 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]{.underline} \--
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, 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]{.underline} 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]{.underline}: None.

[Comments]{.underline}: 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]{.underline} be qualified
by inserting the phrase "usually lasting no longer than 12 months" which
is consistent with the definition of [temporary employment]{.underline}
in the current non-regulatory guidance. Other commenters proposed that
the definition of [temporary employment]{.underline} 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]{.underline}: 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]{.underline} 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]{.underline}: We are modifying the definition of [temporary
employment]{.underline} to clarify that such employment is for a limited
period, usually lasting only a few months, and cannot last longer than
12 months.

[Comment]{.underline}: 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]{.underline}: 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]{.underline} 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 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]{.underline}: None.

[Comments]{.underline}: 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]{.underline}: 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]{.underline}: The Secretary has revised and simplified the
definition of [temporary employment]{.underline} 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]{.underline}: 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]{.underline}: 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]{.underline}: None.

[Comments]{.underline}: 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.

[Discussion]{.underline}: 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.

[§200.83 Responsibilities of SEAs to implement projects through a
comprehensive needs assessment and a comprehensive State plan for
service delivery]{.underline}.

[Comments]{.underline}: 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.

[Discussion]{.underline}: The Secretary recognizes the supplemental
nature of the MEP. As noted in the preamble to the NPRM \[72 FR 25233\],
the proposed change to §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]{.underline}: None.

[§200.89(a) Allocation of funds under the MEP for fiscal year (FY) 2006
and subsequent years]{.underline}.

[§200.89(a)(1)]{.underline}. 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]{.underline}: 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]{.underline}: The Secretary appreciates the commenters'
concern. However, this concern is largely addressed by the requirement
in §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]{.underline}: 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]{.underline}: One commenter recommended revising the
regulations to permit, as was permitted under the ESEA as reauthorized
in 1988 (P.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.

[Discussion]{.underline}: While section 1201(b)(1) of the ESEA as
reauthorized by Pub. L. 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 Pub. L.
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]{.underline}: None.

[Comments]{.underline}: 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]{.underline}: 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]{.underline}: None.

[§200.89(a)(2)]{.underline}. Four individuals or organizations submitted
comments on §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]{.underline}: 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]{.underline}: 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]{.underline}: The Secretary has revised §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]{.underline}: Another commenter stated that the requirements in
proposed §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]{.underline}: The Secretary disagrees with the commenter. In
order to demonstrate the integrity of the program statewide and
nationally, it is necessary for [all]{.underline} 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]{.underline}: None.

[Comment]{.underline}: 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 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]{.underline}: 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]{.underline}: None.

[Comment]{.underline}: 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]{.underline}: 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]{.underline}: None.

[§200.89(b) Responsibilities of SEAs for re-interviewing to ensure the
eligibility of children under the MEP]{.underline}.

[Comment]{.underline}: One commenter objected to the re-interviewing
requirements proposed in §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]{.underline}: 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 §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 §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]{.underline}: None.

[§200.89(b)(1) Retrospective Re-interviewing]{.underline}. In all, six
individuals or organizations submitted comments on the requirements in
§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]{.underline}: 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]{.underline}: 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 \[§200.89(b)(2)(vii)\] or other
quality control checks \[§200.89(d)(7)\].

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 §200.89(b)(2)(vii) or §200.89(d)(7).

[Change]{.underline}: The Secretary has revised §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
(§200.89(b)(2)(vii)) or through other quality control checks, including
audit and monitoring findings of the Secretary (§200.89(d)(7)).

[Comments]{.underline}: 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 this would require each State to expend an additional 8,700 person
hours annually.

[Discussion]{.underline}: 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]{.underline} \[72 FR 25238\], 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]{.underline}: None.

[Comments]{.underline}: 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]{.underline} 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]{.underline}: 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]{.underline}: None.

[Comment]{.underline}: One commenter asked that we clarify which year
States must use for the target child count required for retrospective
re-interviewing.

[Discussion]{.underline}: 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]{.underline}: None.

[§200.89(b)(2) Prospective Re-interviewing]{.underline}. In all, 15
individuals or organizations submitted comments on proposed
§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]{.underline}: 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]{.underline}: The Secretary appreciates the commenters'
expressions of support for the proposal to require prospective
re-interviewing.

[Changes]{.underline}: None.

[Comments]{.underline}: 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.

[Discussion]{.underline}: The Secretary does not agree that the
prospective re-interviewing process required in §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]{.underline}, 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 §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]{.underline}: None.

[Comment]{.underline}: 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]{.underline}: 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]{.underline}: None.

[Comment]{.underline}: In response to our request in the NPRM for input
on whether prospective re-interviewing should occur on a less frequent
interval than 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
§200.89(d), which establishes a number of other quality control
procedures.

[Discussion]{.underline}: 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]{.underline}: None.

[Comment]{.underline}: Several commenters stated that they believed
§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]{.underline}: 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]{.underline}: 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]{.underline}: 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]{.underline}: 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]{.underline}: None.

[Comment]{.underline}: 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]{.underline}: 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 operate or administer the MEP or are not responsible for the
initial eligibility determinations they are reviewing.

[Changes]{.underline}: None.

[Comment]{.underline}: 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]{.underline}: 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 §200.89(d), which outlines the minimum components of a
State's quality control system, and in §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]{.underline}: None.

[§200.89(c) Responsibilities of SEAs to document the eligibility of
migratory children]{.underline}.

[Comments]{.underline}: Ten commenters addressed the proposed provisions
in §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 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 §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]{.underline}: As discussed in the NPRM \[72 FR 25235\], the
Secretary believes that the establishment and use of a national COE, as
proposed in §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
§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 §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]{.underline}: None.

§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]{.underline}: Seven commenters addressed one or more elements
of the proposed quality control requirements in §200.89(d).

Three commenters indicated that the proposed quality control procedures
in §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 §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]{.underline}: 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 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]{.underline} 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]{.underline}: We have amended §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]{.underline}: None.

[Discussion]{.underline}: 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 §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]{.underline}: 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]{.underline}

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]{.underline}

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 \[§200.83\] will cost approximately \$600
    annually in total across all SEAs;

-   Re-interviewing samples of students \[§200.89(b)\] will cost
    approximately \$220,000 annually in total across all SEAs;

-   Documenting the eligibility of migratory children, including the use
    of a standard COE \[§200.89(c)\] will cost approximately \$2.8
    million annually in total across all SEAs; and

-   Institution of specific quality control procedures \[§200.89(d)\]
    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]{.underline} and [Paperwork
Reduction Act of 1995]{.underline}.

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 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.

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.

+----------------+--------------------------+--------------------------+
| Regulatory     | # Collection Information | Collection               |
| Section        |                          |                          |
+----------------+--------------------------+--------------------------+
| §200.83        | Requires SEAs to add     | "Migrant Education       |
|                | measurable program       | Program (MEP)            |
|                | outcomes into the        | Regulations and          |
|                | comprehensive MEP State  | Certificate of           |
|                | plan for service         | Eligibility (COE)."      |
|                | delivery.                |                          |
|                |                          | OMB No. 1810-0662        |
+----------------+--------------------------+--------------------------+
| §200.89(b)(1)  | Requires SEAs to conduct | "Migrant Education       |
|                | retrospective            | Program (MEP)            |
|                | re-interviewing          | Regulations and          |
|                |                          | Certificate of           |
|                |                          | Eligibility (COE)."      |
|                |                          |                          |
|                |                          | OMB No. 1810-0662        |
+----------------+--------------------------+--------------------------+
| §200.89(b)(2)  | Requires SEAs to conduct | "Migrant Education       |
|                | prospective              | Program (MEP)            |
|                | re-interviewing          | Regulations and          |
|                |                          | Certificate of           |
|                |                          | Eligibility (COE)." OMB  |
|                |                          | No. 1810-0662            |
+----------------+--------------------------+--------------------------+
| §200.89(c)     | Requires SEAs to         | "Migrant Education       |
|                | document the eligibility | Program (MEP)            |
|                | of migratory children    | Regulations and          |
|                |                          | Certificate of           |
|                |                          | Eligibility (COE)." OMB  |
|                |                          | No. 1810-0662            |
+----------------+--------------------------+--------------------------+
| §200.89(d)     | Requires SEAs to         | "Migrant Education       |
|                | establish a system of    | Program (MEP)            |
|                | 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 §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 §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 §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
§200.89(d) to establish and implement adequate quality controls. We also
estimate that the data burden associated with the proposed change in
§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,
please address your comments to the Desk Officer for Education, Office
of Information and Regulatory Affairs, OMB, and send via email to
<OIRA_DOCKET@omb.eop.gov> 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]{.underline}. 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]{.underline}

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]{.underline}

You may view this document, as well as all other Department of Education
documents published in the [Federal Register]{.underline}, in text or
Adobe Portable Document Format (PDF) on the Internet at the following
site:

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]{.underline}: The official version of this document is the
document published in the [Federal Register]{.underline}. Free Internet
access to the official edition of the [Federal Register]{.underline} 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]{.underline}

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:

[                       ]{.underline}

Kerri L. Briggs,

##### Assistant Secretary for 

##### Elementary and Secondary Education. 

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

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

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

> 2\. Revise §200.81 to read as follows:

[§200.81 Program definitions]{.underline}.

The following definitions apply to programs and projects operated under
subpart C of this part:

\(a\) [Agricultural work]{.underline} 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]{.underline} 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]{.underline}, 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]{.underline} 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]{.underline} 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 15,000 square miles, and migrates a distance of 20 miles or
more to a temporary residence.

(f) [Migratory fisher]{.underline} 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]{.underline} or [Moved]{.underline} means a change from one
    residence to another residence that occurs due to economic
    necessity.

(h) [Personal subsistence]{.underline} 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]{.underline} means temporary employment or seasonal
    employment in agricultural work or fishing work.

(j) [Seasonal employment]{.underline} 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]{.underline} 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.

    3\. Amend §200.83 as follows:

a\. Redesignate paragraphs (a)(3) and (a)(4) as paragraphs (a)(4) and
(a)(5), respectively, and add a new paragraph (a)(3).

b\. Revise the introductory text of redesignated paragraph (a)(4).

> The revision and addition read as follows:

[§200.83 Responsibilities of SEAs to implement projects through a
comprehensive needs assessment and a comprehensive State plan for
service delivery]{.underline}.

\(a\) \* \* \*

\(3\) [Measurable program outcomes]{.underline}. 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]{.underline}. 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\--

\* \* \* \* \*

4\. Add §200.89 to read as follows:

§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]{.underline}. (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]{.underline}.

\(1\) [Retrospective re-interviewing]{.underline}.

\(i\) 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 §200.89(a), the Secretary
may adjust the child counts for 2000-2001 and subsequent years 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]{.underline}. As part of the system
of quality controls identified in §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 §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]{.underline}. 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)

[^1]: See, e.g., the Department's Office of Inspector General audit of
    the California MEP, report No. ED OIG/A05G0032.

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

[^3]: RTI International, op. cit.

[^4]: 4 See, for example, [Invisible Children: A portrait of migrant
    education in the United States]{.underline}, 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]{.underline}, United States Department of
    Education, Washington D. C., 2002.