[Federal Register Volume 72, Number 86 (Friday, May 4, 2007)]
[Proposed Rules]
[Pages 25228-25241]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-8580]


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DEPARTMENT OF EDUCATION

34 CFR Part 200

[Docket ID ED-2007-OESE-0130]
RIN 1810-AA99


Title I--Improving the Academic Achievement of the Disadvantaged 
(Subpart C--Migrant Education Program)

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Secretary proposes to amend 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 proposed regulations are needed to 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 awards 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: We must receive your comments on or before June 18, 2007.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal

[[Page 25229]]

or via postal mail, commercial delivery, or hand delivery. We will not 
accept comments by fax or by e-mail. Please submit your comments only 
one time, in order to ensure that we do not receive duplicate copies. 
In addition, please include the Docket ID at the top of your comments.
    <bullet> Federal eRulemaking Portal: Go to http://www.regulations.gov, select ``Department of Education'' from the agency 
drop-down menu, then click ``Submit.'' In the Docket ID column, select 
ED-2007-OESE-0130 to add or view public comments and to view supporting 
and related materials available electronically. Information on using 
Regulations.gov, including instructions for submitting comments, 
accessing documents, and viewing the docket after the close of the 
comment period, is available through the site's ``User Tips'' link.
    <bullet> Postal Mail, Commercial Delivery, or Hand Delivery. If you 
mail or deliver your comments about these proposed regulations, address 
them to James J. English, U.S. Department of Education, 400 Maryland 
Avenue, SW., room 3E315, FB6, Washington, DC, 20202-6135.

    Privacy Note: The Department's policy for comments received from 
members of the public (including those comments submitted by mail, 
commercial delivery, or hand delivery) is to make these submissions 
available for public viewing on the Federal eRulemaking Portal at 
http://www.regulations.gov. All submissions will be posted to the 
Federal eRulemaking Portal without change, including personal 
identifiers and contact information.


FOR FURTHER INFORMATION CONTACT: James J. English. Telephone: (202) 
260-1394 or via Internet: <a href="/cdn-cgi/l/email-protection#3d775c50584e1378535a51544e557d5859135a524b"><span class="__cf_email__" data-cfemail="ade7ccc0c8de83e8c3cac1c4dec5edc8c983cac2db">[email protected]</span></a>.
    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 under FOR FURTHER 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Invitation To Comment

    We invite you to submit comments regarding these proposed 
regulations. To ensure that your comments have maximum effect in 
developing the final regulations, we urge you to identify clearly the 
specific section or sections of the proposed regulations that each of 
your comments addresses and to arrange your comments in the same order 
as the proposed regulations.
    We invite you to assist us in complying with the specific 
requirements of Executive Order 12866 and its overall requirement of 
reducing regulatory burden that might result from these proposed 
regulations. Please let us know of any further opportunities we should 
take to reduce potential costs or increase potential benefits while 
preserving the effective and efficient administration of the program.
    During and after the comment period, you may inspect all public 
comments about these proposed regulations by accessing Regulations.gov. 
You may also inspect the comments, in person, in room 3E315, FB-6, 400 
Maryland Ave., SW., Washington, DC, between the hours of 8:30 a.m. and 
4 p.m., Eastern time, Monday through Friday of each week except Federal 
holidays.

Assistance to Individuals With Disabilities in Reviewing the Rulemaking 
Record

    On request, we will supply an appropriate aid, such as a reader or 
print magnifier, to an individual with a disability who needs 
assistance to review the comments or other documents in the public 
rulemaking record for these proposed regulations. If you want to 
schedule an appointment for this type of aid, please contact the person 
listed under FOR FURTHER INFORMATION CONTACT.

Background

    The Department provides MEP formula grants to SEAs to establish or 
improve programs of education for the Nation's migrant children. These 
programs of education are expected to address the identified 
educational and educationally related needs of migrant children that 
result from their migratory lifestyle and to permit migrant children to 
participate effectively in school.
    Under the ESEA, a core responsibility of each SEA is to ensure that 
only those children who are eligible for the MEP are identified, 
counted, and served. Meeting this responsibility is key to ensuring 
that-- (1) States provide MEP-funded services only to eligible migrant 
children; (2) Each SEA's MEP allocation accurately reflects its 
statutory share of the funds that Congress annually appropriates for 
the MEP; and (3) Public confidence in the program's integrity remains 
strong.
    With regard to State MEP allocations, since FY 2002 the amount of 
an SEA's annual MEP award under section 1303(a)(2) of the ESEA has been 
tied to the level of its FY 2002 base-year MEP award, which itself is 
dependent in large part on the SEA's 2000-2001 count of eligible 
migratory children residing in the State in relation to the counts of 
other States.
    Over the last few years, the Department has become increasingly 
concerned about the accuracy and consistency of the processes SEAs have 
used to determine the eligibility of migratory children and the counts 
of children eligible for services that the SEAs report to the 
Department. Since 2004, the Office of Elementary and Secondary 
Education (OESE) and the Office of Inspector General (OIG) have 
undertaken efforts to examine SEA processes and child counts more 
closely. In order to assess and confirm the correctness of SEA 
eligibility determinations, OESE designed and implemented a process 
under which SEAs voluntarily re-interviewed a statewide, random sample 
of children they had identified as eligible for the MEP during the 
2003-2004 program year. OESE provided guidance on reasonable ways to 
choose a random sample and to conduct this re-interviewing process, and 
requested that, following the re-interviews, participating States 
determine and report to the Department their ``defect rate'' (i.e., the 
percentage of children in the State's 2003-2004 re-interview sample 
that were determined ineligible under the re-interview process).
    To date, the vast majority of SEAs have voluntarily completed a re-
interviewing process and reported their defect rates. The State-
reported defect rates range from zero percent to 100 percent, with a 
mean defect rate of 9.8 percent and a median defect rate of 5.6 
percent. The States that have reported defect rates account for more 
than 98 percent of the reported count of migratory children eligible 
for services nationally in the 2003-2004 program year.
    Independently, the OIG has completed or, in some cases, is still 
conducting audits and investigations in a number of States (including 
States that did not initially participate in OESE's voluntary re-
interviewing initiative) and has found errors in State migratory child 
eligibility counts. In some cases, the errors the OIG or the States 
found on their own may be actionable as civil or criminal fraud. In 
other cases, errors may reflect incorrect interpretations of MEP 
eligibility requirements. In most cases, however, the errors seem 
attributable to factors such as: Poor training of State and local 
personnel responsible for determining eligibility; weak quality-control 
procedures for reviewing child eligibility determinations; and a lack 
of uniformity

[[Page 25230]]

in the implementation of the MEP eligibility requirements.
    The OIG findings and the SEA-reported defect rates are very 
troubling for several reasons. First, they suggest that the level and 
quality of MEP-funded services that eligible migrant students needed 
and deserved have been diluted by the delivery of services to children 
who were not eligible to receive them. Second, they suggest that, over 
the last several years, the Department may have awarded MEP funds to 
States on the basis of inaccurate and, in some cases, perhaps 
significantly inflated State counts of eligible children. And third, 
because section 1303 of the ESEA requires the Department to use the FY 
2002 State MEP allocation as the ``base amount'' for allocations made 
to SEAs in subsequent years, the State MEP allocations for FY 2006 and 
each subsequent year (as well as supplemental FY 2005 awards that were 
issued in September 2006) will continue to be flawed unless the 
Department takes action.
    Given these considerations, the Secretary is proposing these 
regulations, which would: Provide for the adjustment of the base 
amounts of the FY 2006 and subsequent year MEP allocations; clarify and 
expand the definitions governing who is a ``migratory child''; and 
establish requirements for SEAs to develop and implement rigorous 
quality-control procedures in order to improve the accuracy of MEP 
eligibility determinations and State counts of eligible migratory 
children. The Secretary would also apply the procedures for determining 
final MEP allocations for FY 2006 and beyond to supplemental FY 2005 
MEP awards that were made in September 2006.
    The Secretary also proposes to make minor changes to the current 
regulations governing development of a comprehensive statewide needs 
assessment and service delivery plan.

Significant Proposed Regulations

    We discuss the following substantive issues under the sections of 
the proposed regulations to which they pertain. Generally, we do not 
address proposed regulatory provisions that are technical or otherwise 
minor in effect.

Title I, Subpart C--Migrant Education Program

Section 200.81 Program Definitions
Agricultural Activity and Fishing Activity
    Statute: The definition of migratory child in section 1309 of the 
ESEA refers to agricultural work and fishing work but does not provide 
for a definition of these terms or the terms agricultural activity and 
fishing activity.
    Current Regulations: Section 200.81(a) and (b) provides definitions 
of agricultural activity and fishing activity. In the current 
definitions, an agricultural activity is defined as any activity 
directly related to: (1) The production or processing of agricultural 
products for initial commercial sale or personal subsistence; (2) the 
cultivation or harvesting of trees; or (3) fish farms. A fishing 
activity is defined as any activity directly related to the catching or 
processing of fish or shellfish for initial commercial sale or personal 
subsistence.
    Proposed Regulations: We propose to revise both the terms and 
definitions relating to agricultural activity and fishing activity. 
Specifically, we propose changing the terms agricultural activity and 
fishing activity to agricultural work and fishing work, respectively. 
We propose to remove the phrases ``an activity directly related to'' 
and ``for initial commercial sale'' from the definitions of both of 
these terms and to add the word ``initial'' before the term 
``processing'' in both definitions. We also propose modifying the 
definitions of agricultural work and fishing work to include the phrase 
``work performed generally for wages or in rare cases personal 
subsistence.'' Finally, we would modify the definition of agricultural 
work to remove the phrase ``any activity directly related to fish 
farms''; the reference to fish farms would be added to the definition 
of fishing work.
    Reasons: We propose the changes to the current terms and 
definitions of agricultural activity and fishing activity in order to 
clarify and simplify these terms. Changing the terms agricultural 
activity and fishing activity to agricultural work and fishing work 
provides consistency with the statutory definition of migratory child 
in section 1309(2) of the ESEA, which refers to a move being made to 
obtain temporary or seasonal employment in agricultural or fishing 
work. In addition, the phrase ``any activity directly related to'' in 
the current definitions of agricultural activity and fishing activity 
is unnecessary and confusing because it could be interpreted to include 
an activity (such as trucking services that transport livestock or fish 
to a processing plant or managing workers in a field or processing 
plant) that may be directly related to agriculture or fishing but is 
not inherently agricultural or fishing work; thus, we propose 
eliminating this phrase.
    Further, the phrase ``for initial commercial sale'' in the current 
definitions of agricultural activity and fishing activity was primarily 
intended to limit the scope of these definitions to work that is 
involved with the initial processing of raw agricultural products, 
fish, or shellfish. However, as the definitions are currently written, 
use of the term ``initial'' with respect to a commercial sale is 
confusing, as there are circumstances in the agriculture and fishing 
industries where there may be two ``initial'' commercial sales: one 
associated with the production of agricultural products, fish, or 
shellfish, and the other associated with the processing of agricultural 
products, fish, or shellfish. For example, wheat is harvested and sold 
to a factory for processing into flour. The sale of the wheat to the 
factory is the initial commercial sale of a crop to the processor. This 
sale ends the production phase of the crop. The factory then processes 
the wheat into flour and sells the flour to a bakery. The sale of the 
flour to the bakery is an initial commercial sale of a processed 
product (flour) to a next-stage processor and ends the processing phase 
as a qualifying agricultural activity. Harvesting the wheat and 
processing the wheat into flour both meet the definition of 
agricultural activity because they are the production and processing of 
a crop for initial commercial sale. On the other hand, the processing 
of the flour into baked goods does not meet the definition of an 
agricultural activity because an initial commercial sale of a processed 
product had already occurred when the flour was sold to the bakery.
    While removing the reference to ``initial commercial sale'', we 
propose to add the word ``initial'' before the term ``processing'' in 
both definitions in order to clarify that only initial processing of 
raw products is considered agricultural work or fishing work for the 
purposes of the MEP.
    We propose specifying in the revised definitions of agricultural 
work and fishing work that these types of work consist of ``work 
performed generally for wages or in rare cases personal subsistence'' 
to clarify that, while there are some rare circumstances in which the 
worker and his or her family do the work for personal subsistence, the 
work is generally performed for wages. It is therefore appropriate to 
include a reference to work performed ``generally for wages or in rare 
cases personal subsistence.'' Finally, we propose to move the reference 
to fish farms in the current definition of agricultural activity to the 
new definition of fishing work

[[Page 25231]]

because this change reflects a more consistent and simpler way of 
grouping work that involves fishing.
In Order To Obtain
    Statute: Section 1309 of the ESEA provides in part that an 
individual is considered a migratory child if the child or child's 
parent, guardian, or spouse moved ``in order to obtain'' temporary or 
seasonal employment in agricultural or fishing work.
    Current Regulations: The current regulations do not define the 
phrase `` `in order to obtain' * * * temporary or seasonal employment 
in agricultural or fishing work.''
    Proposed Regulations: We propose adding a definition of the term in 
order to obtain to clearly require that one of the purposes of the move 
must be to seek or obtain temporary or seasonal employment in 
agricultural or fishing work and that, absent this intent, the worker 
did not move ``in order to obtain'' temporary or seasonal employment in 
agricultural or fishing work. In addition, our proposed definition 
clarifies that a worker did not move in order to obtain temporary or 
seasonal employment in agricultural or fishing work if the worker would 
have moved and changed residence even if the work was unavailable.
    Reasons: The statutory phrase in section 1309(2) that a migratory 
move be made ``in order to obtain * * * temporary or seasonal 
employment in agricultural or fishing work'' can only mean that the 
purpose or intent of the worker in making the move must be to seek or 
obtain that work. We are proposing this change to ensure consistency 
with the statute and to clarify that a possible contrary interpretation 
of this language that was included in non-regulatory guidance for the 
MEP that the Department issued prior to its current draft guidance, 
issued on October 23, 2003, is inconsistent with the statute. The 
former guidance indicated that an SEA could determine that a child 
qualified under the MEP if the child or the child's parent, guardian, 
or spouse found temporary or seasonal employment in agricultural or 
fishing work ``as a result of the move.'' To the extent that this 
phrase may imply that the purpose or intent of the worker is 
irrelevant, it is inconsistent with the statute. Thus, our proposed 
definition of in order to obtain temporary or seasonal employment in 
agricultural or fishing work would distinguish between migratory 
agricultural workers and migratory fishers who move with the intent of 
obtaining temporary or seasonal employment in agricultural work or 
fishing work and individuals who move for other purposes but may end up 
working as a temporary or seasonal laborer in agriculture or fishing at 
a later date.
Migratory Agricultural Worker; Migratory Fisher; Principal Means of 
Livelihood
    Statute: The statutory definition of migratory child refers to but 
does not further define a migratory agricultural worker or a migratory 
fisher.
    Current Regulations: The current regulations in 34 CFR 200.81(c) 
and (e) define the terms migratory agricultural worker and migratory 
fisher. In the current definitions, a migratory agricultural worker and 
migratory fisher generally mean a person 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 
activities as a principal means of livelihood. The current regulations 
further define the term principal means of livelihood, in Sec.  
200.81(f), to mean that the activity plays an important part in 
providing a living for the worker and his or her family.
    Proposed Regulations: We propose to remove the parenthetical phrase 
``(including dairy work)'' from the definition of migratory 
agricultural worker. We also propose to amend the definition of 
migratory fisher to clarify that, in the special case of moves in a 
school district of more than 15,000 square miles, the migratory fisher 
must have moved in order to obtain temporary employment or seasonal 
employment in fishing. We propose to continue, with minor editorial 
changes, to use the current term (and the associated separate 
definition restated in proposed Sec.  200.81(i)), principal means of 
livelihood, in the definitions of migratory agricultural worker and 
migratory fisher.
    Reasons: We are removing the parenthetical ``(including dairy 
work)'' from the definition of migratory agricultural worker because it 
is redundant in view of the proposed definition of agricultural work, 
which includes the production and processing of dairy products. We 
propose to clarify that moves within a school district of more than 
15,000 square miles must be ``in order to obtain'' temporary or 
seasonal employment in fishing work because this is consistent with the 
plain meaning of the statutory language in section 1309(2)(c). We 
propose to continue to use the term and current definition of principal 
means of livelihood in order to continue to clarify that the migratory 
work performed by a migratory agricultural worker or a migratory fisher 
must be an important part of providing a living to the migratory worker 
and his/her family.
Migratory Child
    Statute: Section 1309(2) of the statute provides a basic definition 
of the term migratory child.
    Current Regulations: The term migratory child is defined in Sec.  
200.81(d) and is substantially the same as the statutory definition. In 
general, a migratory child is defined as a child whose parent is a 
migratory agricultural worker or a migratory fisher, and who, in the 
preceding 36 months, has moved from one school district to another 
because the parent has moved in order to obtain temporary or seasonal 
employment in agricultural or fishing work. In addition, the current 
definition notes that a migratory child may move on his or her own as 
the migratory agricultural worker or migratory fisher (or with a spouse 
or guardian who is a migratory agricultural worker or migratory 
fisher), and provides special circumstances for moves within (1) a 
single-school-district-State and (2) school districts of more than 
15,000 square miles.
    Proposed Regulations: We propose to revise the organization and 
language of the definition of migratory child to make it clearer that a 
child may meet the definition if the child is a migratory agricultural 
worker or migratory fisher in his or her own right, or by accompanying 
or joining a parent, guardian, or spouse who is a migratory 
agricultural worker or migratory fisher.
    Reasons: We propose revising the definition of migratory child 
because, as taken verbatim from the statute, it is convoluted and 
confusing. The revised definition seeks to clarify that a child may be 
a migratory child by moving either (1) as a migratory agricultural 
worker or migratory fisher in his or her own right or (2) as the child 
or spouse of such a worker. We also propose to revise the regulation to 
clarify what has been a longstanding policy in the program's non-
regulatory guidance: that a migratory child includes both a child who 
accompanied the worker and a child who has joined a worker in a 
reasonable period of time.
Moved or Move
    Statute: The statute does not provide a meaning for the terms moved 
or move.
    Current Regulations: The current regulations also do not define the 
terms moved or move.
    Proposed Regulations: We propose adding a definition for the terms 
moved or move to specify that either of these

[[Page 25232]]

terms means that a change in residence was made in order for the worker 
to obtain temporary or seasonal employment in agricultural or fishing 
work. We further propose that this definition not include travel or 
moves that occur either (1) during or after a vacation or holiday, or 
(2) for other personal reasons unrelated to seeking or obtaining 
temporary or seasonal employment in agricultural or fishing work even 
if this work is subsequently sought or obtained.
    Reasons: While our non-regulatory guidance has for many years 
referred to the terms ``moved'' and ``move'' in a similar way, some 
States have determined as eligible under the MEP children who simply 
returned home from a trip to visit relatives or from a location where 
they briefly stayed for other personal reasons. We do not consider 
these types of relocations to constitute a move for purposes of 
determining eligibility under the MEP because they are not made for the 
purpose of obtaining temporary or seasonal employment. This new 
definition, therefore, is necessary to make clear that a move under the 
MEP would not include travel that occurs as a result of a vacation, 
holiday, or for other personal reasons unrelated to obtaining temporary 
or seasonal employment in agricultural or fishing work even if such 
work is subsequently sought or obtained.
Personal Subsistence
    Statute: The ESEA does not define the term personal subsistence for 
purposes of the MEP.
    Current Regulations: The current regulations also do not provide a 
definition of the term personal subsistence although the term is used 
in the current definitions of the terms agricultural activity and 
fishing activity and the proposed definitions of agricultural work and 
fishing work.
    Proposed Regulations: We propose adding a definition to clarify 
that, in the context of the proposed definitions of agricultural work 
or fishing work (which would replace the terms agricultural activity 
and fishing activity), personal subsistence means that the worker and 
his or her family perform such work in order to consume the crops, 
dairy products, or livestock they produce or the fish they catch in 
order to survive. This proposed definition of personal subsistence 
would not include situations in which a family simply tends a backyard 
garden for personal consumption because the produce obtained from such 
gardening work, even though consumed by the family, is not necessary in 
order for the family to survive.
    Reasons: This proposed definition is intended to establish a 
consistent standard for all States to use in determining whether 
agricultural work or fishing work is performed for personal 
subsistence.
Seasonal Employment
    Statute: The statute does not define the term seasonal employment.
    Current Regulations: The current regulations also do not define 
this term.
    Proposed Regulations: We propose adding a definition of the term 
seasonal employment to mean employment that is dependent on the cycles 
of nature (e.g., employment in agricultural work that lasts for a 
particular period of time due to specific meteorological or climatic 
conditions associated with the cultivation or harvesting of crops).
    Reasons: This additional definition is necessary to explain the 
meaning of the term seasonal employment as used in the statutory 
definition of migratory child. As such, it helps to distinguish between 
agricultural or fishing work that is seasonal employment (i.e., which 
lasts only for a particular season due to specific meteorological or 
climatic conditions) versus agricultural or fishing work that is 
temporary employment.
Temporary Employment
    Statute: The ESEA does not define the term temporary employment for 
purposes of the MEP.
    Current Regulations: The current regulations also do not provide a 
definition of temporary employment.
    Proposed Regulations: We propose adding a definition of the term 
temporary employment to specify that this type of employment lasts for 
a limited period of time, usually a few months, and does not include 
employment that is constant and year-round. The definition includes 
examples of situations where employment in agriculture or fishing is 
temporary. The definition also clarifies that there are some 
circumstances (e.g., livestock processing plant facilities) in which an 
employer does not classify the work as temporary and workers may remain 
employed indefinitely but, in which, perhaps because of the nature of 
the work, the actual employment patterns of workers strongly indicate 
that employment in this agricultural or fishing work lasts only for a 
limited period of time. In these specific circumstances, we propose 
that an SEA may determine these types of employment to be temporary if 
it can document through annual surveys (by individual job site) of 
workers who move to obtain this work that virtually no workers remain 
employed more than 12 months.
    Reasons: This proposed definition is intended to establish a 
consistent standard (1) applicable to employment in both production and 
initial processing activities, and (2) for all States to use in 
determining which types of employment in agricultural work and fishing 
work are temporary. This proposed definition is also intended to set a 
higher standard than we currently have in place in our non-regulatory 
guidance--where we have provided that SEAs can deem a job temporary if 
an employer certifies that the job has more than a 50 percent turnover 
rate in 12 months. We envision that the proposed annual survey of 
workers to establish whether or not particular types of work can be 
deemed temporary would be included as part of the annual process that 
SEAs already conduct to re-establish the continued residency of 
previously-identified children over the 3-year window of eligibility. 
We believe that the proposed terms ``a few months'' and ``virtually no 
workers * * * will remain employed for more than 12 months'' will allow 
the SEAS some flexibility to respond to different conditions in 
different States and different work sites and avoid setting precise 
criteria that may not take into account future changes in agricultural 
or fishing work (e.g., longer seasons due to improved farming or 
fishing technologies). We do not wish to set arbitrary limits, 
especially because it is unclear that one fixed rate would be 
appropriate in all situations. For example, there is likely to be more 
precision in determining these rates in sites with larger numbers of 
workers than in sites with small numbers of workers. This said, we wish 
to solicit public comment specifically on whether to retain the 
proposed terms ``a few months'' and ``virtually no workers * * * will 
remain employed more than 12 months,'' whether those terms create 
opportunities for abuse, whether firm time limits and worker numbers or 
percentages should and might reasonably be established, and what those 
time limits or percentages might be. We also wish to solicit comments 
on whether there are additional regulatory requirements relating to the 
survey of workers to establish whether particular types of work are 
temporary that would: Improve the quality or consistency of the data; 
or provide for more efficient methods to collect this data.

[[Page 25233]]

Section 200.83 Responsibilities of SEAs To Implement Projects Through a 
Comprehensive Needs Assessment and a Comprehensive State Plan for 
Service Delivery
    Statute: Under section 1306(a) of the ESEA, each SEA receiving MEP 
funds must ensure that it and its operating agencies identify and 
address the special educational needs of migratory children in 
accordance with a comprehensive needs assessment and service delivery 
plan that meets the requirements of that provision. Among other things, 
section 1306(a) states that the comprehensive State plan for service 
delivery must contain measurable program goals and outcomes.
    Current Regulations: Section 200.83 clarifies the statutory 
responsibilities of an SEA receiving MEP funds regarding the 
development of a comprehensive needs assessment and service delivery 
plan. Section 200.83(a)(1) requires the plan to specify the performance 
targets ``that the State has adopted for all children in reading and 
mathematics achievement, high school graduation, and the number of 
school dropouts, as well as the State's performance targets, if any, 
for school readiness,'' as well as ``[a]ny other performance targets 
that the State has identified for migratory children.'' However, the 
regulation does not reference the need for the plan to specify 
measurable outcomes related to those performance targets.
    Proposed Regulations: We propose to revise Sec.  200.83 to clarify 
that the SEA's comprehensive needs assessment and plan for service 
delivery must also include the measurable outcomes that the State's MEP 
will produce for migratory children in relation to--
    (1) The performance targets the State has adopted for all children 
in reading and mathematics achievement, high school graduation, and the 
number of school dropouts, as well as, if any, for children 
participating in school readiness programs, and
    (2) Any other performance targets it has adopted for migratory 
children.
    Reasons: When the Department issued Sec.  200.83, it failed to 
include one of the statutory requirements for a needs assessment and 
service delivery plan, i.e., measurable outcomes. Unfortunately, a 
number of States appear to have assumed that the requirements contained 
in Sec.  200.83 were exhaustive. The proposed change, therefore, would 
simply clarify in the regulations what the statute already requires--
that an SEA's comprehensive plan must include both the specific 
performance targets (i.e., goals) it has established in keeping with 
the statute and its measurable outcomes relative to those targets.
Section 200.89(a) Allocation of Funds Under the MEP for Fiscal Year 
(FY) 2006 and Subsequent Years
    Statute: Section 1303(a)(2) and (b) of the ESEA establishes a 
formula for State MEP allocations for FY 2003 and subsequent years 
under which each State receives the ``base amount'' awarded to it for 
FY 2002 and a share of any additional funds that Congress appropriates 
for the MEP over the level of the MEP's FY 2002 appropriations. Both 
the base amount and the amount of additional funds each State is 
entitled to receive are derived in part from State-submitted counts of 
eligible migratory children. In addition, section 1303(c)(1) directs 
the Secretary to reduce ratably the amount of State awards to reflect 
the actual amount Congress appropriates for the MEP in any fiscal year. 
Section 1303(c)(2) permits the Secretary to further reduce a State's 
MEP allocation if the Secretary determines, based on available 
information on the numbers and needs of eligible migratory children in 
the State and the State's program to address those needs, that the 
amount that would be awarded exceeds the amount the State needs.
    Section 1303(e)(1) also directs the Secretary to use such 
information as most accurately reflects the actual number of migratory 
children in a State in calculating the amount of State MEP allocations. 
Finally, section 1304(c)(7) requires each SEA to provide an assurance 
in its application for funds that it will assist the Secretary, through 
such procedures as the Secretary requires, in determining the eligible 
numbers of migratory children in the State for purposes of making State 
MEP allocations.
    Current Regulations: The current regulations do not address State 
MEP allocations and the formula used to calculate those allocations.
    Proposed Regulations: Proposed Sec.  200.89(a) would 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 children, and thereby determine the base amount of a State's 
MEP award for FY 2006 and subsequent years. The proposed regulation 
would also require, as a condition to an SEA's receipt of its final FY 
2006 and subsequent-year MEP awards, thorough re-documentation of the 
eligibility of all children (and the removal of all ineligible 
children) included in an SEA's 2006-2007 MEP child counts.
    Reasons: We know, as a result of the voluntary re-interviewing 
initiative and OIG's findings, that many of the State migratory child 
counts that were submitted to the Department for 2003-2004 were 
inaccurate to some degree. As further discussed in this preamble, we 
believe that there is significant reason to believe that comparable 
inaccuracies affect the SEAs' 2000-2001 counts of migratory children as 
well. Hence, we also believe that to continue to base MEP allocations 
on those 2000-2001 counts would be contrary to the statutory 
requirement that the Secretary award funds on the basis of ``such 
information as the Secretary finds most accurately reflects the actual 
number of migratory children'' in each State.
    Section 1303(a) of the ESEA provides that MEP allocations for FY 
2003 and beyond are to be based in part on the States' counts for 2000-
2001 of the following: (1) All migratory children residing in their 
States during that year, and (2) all migratory children who 
participated in MEP summer and intersession programs during that year. 
It is inconceivable however that, in enacting section 1303(a), Congress 
intended the Department to continue to use the FY 2002 MEP State 
allocations amounts to make subsequent years' awards if the underlying 
State counts of eligible migratory children that supported the FY 2002 
allocation determinations were inaccurate. Congress also provided in 
section 1304(c)(7) of the ESEA that States would have continuing 
responsibility to ``assist the Secretary in determining the number of 
migratory children [used in calculating State MEP allocations] through 
such procedures as the Secretary may require.'' The Department annually 
provides instructions to the SEAs regarding the submission of accurate 
counts of migratory children in the ``Migrant Child Count Report for 
State Formula Grant Migrant Education Programs under the [ESEA]'' (OMB 
No. 1810-0519), and, by receipt of MEP funding through consolidated 
State applications submitted under section 9302 of the ESEA, each SEA 
provides an assurance to ``adopt and use proper methods of 
administering each such program, including the enforcement of any 
obligations imposed by law. * * *'' Given these related requirements, 
the responsibility of SEAs under section 1304(c)(7) of the ESEA to 
assist the Secretary in determining the number of migratory children 
clearly includes a responsibility to correct any originally submitted 
child counts that were inaccurate.
    Therefore, we believe that, to make the appropriate allocations for 
FY 2006 and subsequent years consistent with the statute, the 
Department must re-

[[Page 25234]]

determine each SEA's FY 2002 base allocation amount by applying the 
defect rate accepted by the Department to the SEA's 2000-2001 child 
counts, and then use the adjusted base allocation amounts to calculate 
the allocations for FY 2006 and subsequent years.
    When the Department began the re-interviewing initiative, it 
acknowledged that, because of the passage of time, States could face 
significant challenges in locating all of the children within their 
random sample of children counted in 2000-2001 for the purposes of 
conducting the needed re-interviews. For this reason, the Department 
gave participating States the option of conducting re-interviews for a 
random sample of children identified either (a) in 2000-2001, or (2) in 
2003-2004, in which case the Department would apply the defect rate for 
that year to the State's reported 2000-2001 child counts.
    We have no reason to believe that the defect rates States have 
reported for 2003-2004 would have been significantly different had 
States been able to conduct eligibility re-interviews of children they 
had identified as eligible for the MEP in 2000-2001. Indeed, for defect 
rates of children identified as eligible in 2000-2001 to be lower than 
those reported for 2003-2004, one would have to assume that State 
procedures for identifying eligible migratory children deteriorated 
between 2000-2001 and the time States conducted their re-interviews of 
children in their 2003-2004 migratory child counts. Given the major 
emphasis the Department has placed in recent years on improved 
migratory child eligibility decisions, we believe that State procedures 
for identifying eligible migratory children should have improved since 
2000-2001.
    Proposed Sec.  200.89(a) notes that the Department would use State 
defect rates ``that the Secretary accepts'' for adjusting the 2000-2001 
counts of eligible children, and thereby determine the base amount of a 
State's MEP award for FY 2006 and subsequent years. To determine that 
the reported defect rates are acceptable, the Department will review 
how each State determined its defect rate. To the extent that a defect 
rate is determined from the review not to be acceptable, a State would 
be required under proposed Sec.  200.89(b) to conduct further re-
interviewing. We consider it necessary to conduct this review to 
determine the acceptability of reported defect rates, and perhaps 
require additional re-interviewing, because States did not use 
identical methodologies in determining their defect rates.
    We acknowledge that the State defect rates the Secretary ultimately 
accepts will not perfectly correct for errors in the 2000-2001 
migratory child counts that States previously reported. However, we 
firmly believe that their use will enable the Department to distribute 
MEP funds for FY 2006 and subsequent years in a way that much better 
reflects the ESEA statutory formula and congressional intent than would 
the continued use of the original and inaccurate 2000-2001 child 
counts.
    Finally, proposed Sec.  200.89(a)(2) requires re-documentation of 
the eligibility of all children (and the removal of all ineligible 
children) as a condition to SEA receipt of final FY 2006 and 
subsequent-year MEP awards. From a practical standpoint, we expect that 
this re-documentation effort can be completed as an SEA carries out its 
annual activities relative to examining whether children previously 
identified as eligible in a prior performance year (and who have 
eligibility under the statutory definition for 36 months) are still 
resident and can be counted and served as eligible under the program. 
We would expect SEAs to carefully examine the underlying eligibility of 
all previously-identified migratory children relative to the types of 
problems identified during the retrospective re-interviewing as causing 
defective eligibility determinations. We propose this re-documentation 
effort in order to ensure that only eligible migratory children receive 
MEP funded services and are included in an SEA's 2006-2007 MEP child 
counts.
Section 200.89(b) Responsibilities of SEAs for Re-Interviewing To 
Ensure the Eligibility of Children Under the MEP
    Statute: Section 1309(2) of the ESEA provides the definition of a 
migratory child that States must use to determine eligibility for MEP 
services. Section 1304(c)(7) requires that SEAs assist the Secretary, 
through such procedures as the Secretary requires, in determining the 
eligible numbers of migratory children in the State.
    Current Regulations: The current regulations do not require States 
to conduct re-interviewing to ensure eligibility of children under the 
MEP.
    Proposed Regulations: Proposed Sec.  200.89(b) would require SEAs 
to conduct retrospective and prospective re-interviewing of children to 
confirm their eligibility. Retrospective re-interviewing would be 
required for those SEAs that have either (1) not conducted a re-
interviewing process on a statewide random sample of identified 
migratory children and submitted a defect rate to the Secretary, or (2) 
submitted a defect rate that the Secretary does not accept. The 
proposed regulations identify minimum requirements for retrospective 
re-interviewing as well as the minimum content of the report that these 
States would need to submit to the Secretary on the defect rate and re-
interviewing process.
    Prospective re-interviewing would be required of all SEAs annually 
in order to provide an improved quality-control check on the accuracy 
of their current eligibility determinations and to guide any needed 
corrective actions or improvements in a State's migratory child 
identification and recruitment practices.
    Reasons: Nearly all SEAs voluntarily re-interviewed a random sample 
of their identified migratory children and submitted a defect rate to 
the Department. However, a few did not. As a matter of fairness, and to 
ensure that the procedures the Department would use to calculate the 
final amount of each State's MEP award for FY 2006 and subsequent years 
reflect defect rates that the Secretary accepts for all States, the 
Secretary proposes to require that those last few States conduct 
retrospective re-interviewing. The proposed regulations require the 
retrospective re-interviewing to be completed within six months of the 
effective date of these regulations by those SEAs that did not conduct 
a retrospective re-interviewing process on a voluntary basis. We 
believe requiring completion of retrospective re-interviewing within 
six months of the effective date of the regulations is appropriate 
based on our analysis of the amounts of time needed by SEAs who 
conducted the re-interviewing process voluntarily.
    The minimum elements of both the retrospective re-interviewing 
process and the report to the Secretary are included in proposed Sec.  
200.89(b) in order to clarify the procedures the Secretary expects 
States will use to determine and report a defect rate, and that the 
Secretary will review in assessing whether the reported defect rate is 
acceptable in order to adjust the base amounts of the FY 2006 and 
subsequent year MEP allocations. As set forth in the regulations, the 
minimum elements of retrospective re-interviewing would include: use of 
a statewide random sample (at a 95 percent confidence level with a 
confidence interval of plus or minus 5 percent); use of independent re-
interviewers; and 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-

[[Page 25235]]

interviewed. The minimum elements for reporting on retrospective re-
interviewing would include: An explanation of the sample and the re-
interview procedures, and the findings and corrective actions, as well 
as an acknowledgement that the defect rate can be used to adjust the 
2000-01 child counts previously submitted by the State and used to 
determine the FY 2002 base year allocations.
    To date, the Department has addressed various elements of quality 
control in non-regulatory guidance. However, since the counts of 
migratory children the States have reported have been found to include 
children ineligible for the program, we believe that it is necessary to 
require through regulations some minimum requirements for a State's 
quality-control system. (In this regard see the further discussion 
regarding proposed Sec.  200.89(d).) In particular, we now propose that 
all States be required to conduct a process of prospective re-
interviewing to ensure that State migratory child counts are not again 
affected by improper eligibility determinations. As described in 
proposed Sec.  200.89(b)(2), prospective re-interviewing would include, 
as part of a State's system of quality controls, the face-to-face re-
interviewing of a sufficient sample of identified migratory children 
(selected randomly on a statewide basis or within relevant strata) so 
as to enable the State to annually assess the level of accuracy of its 
eligibility determinations, uncover eligibility problems, and improve 
the accuracy of their child count determinations.
    It should be noted that while the regulation proposes that 
retrospective re-interviewing be based on a statewide random sample (at 
a 95 percent confidence level with a confidence interval of plus or 
minus 5 percent), the regulation also proposes that prospective re-
interviewing be based on a sufficient sample of identified migratory 
children. This is the case since the defect rate to be calculated from 
the retrospective re-interviewing sample must be able to be generalized 
to the State's entire population of identified migratory children, 
while, for prospective re-interviewing, the sample to be re-interviewed 
must only be of sufficient size and scope to enable the prospective re-
interviewing process to serve as an adequate early warning system of 
developing eligibility problems. The samples for prospective re-
interviewing can be selected randomly on a statewide basis or within 
relevant strata; the Department plans to provide updated guidance 
concurrent with the issuance of the final rule providing instruction on 
how to appropriately conduct sampling to satisfy this requirement.
    The regulation proposes prospective re-interviewing on an annual 
basis. As discussed in the Paperwork Reduction Act submission to OMB, 
we expect that SEAs will need to prospectively re-interview no more 
than 100 families (on average) and that the burden would amount to less 
than 8,700 person-hours annually. However, the Department remains 
interested in the additional burden that mandatory prospective re-
interviewing would impose and, therefore, requests comments on whether 
prospective re-interviewing on a different interval (e.g., biannually) 
would continue to be effective and efficient, while still retaining the 
program integrity goals outlined here.
    The proposed regulation would also require each SEA to implement 
needed corrective actions or improvements, including corrective actions 
required by the Secretary, in order to address any problems identified 
through prospective re-interviewing with child eligibility 
determinations.
Section 200.89(c) Responsibilities of SEAs To Document the Eligibility 
of Migratory Children
    Statute: Section 1309(2) of the ESEA provides the definition of a 
migratory child that each SEA must use to determine eligibility of a 
migratory child. Except for the very limited exceptions specified in 
section 1304(e) of the ESEA that govern continuity of MEP services to 
children whose eligibility has terminated, sections 1302 and 1304(a) 
require SEAs to provide MEP services only to eligible migratory 
children.
    Current Regulations: While Sec.  76.731 of the Education Department 
General Administrative Regulations (EDGAR) [34 CFR 76.731] requires 
SEAs to keep records to show their compliance with program 
requirements, the current MEP regulations do not specify a standard 
procedure for SEAs to document a child's eligibility under the MEP.
    Proposed Regulations: Proposed Sec.  200.89(c) would require that 
all SEAs and local operating agencies use a standard, national 
Certificate of Eligibility (COE) developed and promulgated by the 
Department to record and certify the accuracy of basic information 
documenting the eligibility of a migratory child. One COE would be 
completed per family per qualifying move and include basic information 
on each eligible child (e.g., name, age, grade). Proposed Sec.  
200.89(c) also identifies the SEA (i.e., the MEP grantee) as the 
responsible entity for all eligibility determinations, and would 
require an SEA to collect additional documentation on the child beyond 
that contained on the COE, as may be necessary to confirm a child's MEP 
eligibility.
    Reasons: The Secretary proposes to require use of a standard COE on 
which all SEAs would record the minimum information necessary to 
confirm migratory child eligibility because she believes that use of a 
more systematic national procedure is needed to help ensure that 
acceptable documentation exists for all children in the Nation who are 
found eligible for the MEP. Under section 9304(a)(1) of the ESEA, each 
SEA that receives MEP funds already must provide an assurance that it 
will administer all ESEA programs in accordance with applicable 
statutes and regulations, and section 1302 of the ESEA places 
responsibility on these SEAs to use their MEP funds, either directly or 
through local operating agencies, to establish or improve education 
programs ``for migratory children in accordance with [Title I, Part C 
of the ESEA].'' In addition, section 80.40 of EDGAR provides that each 
SEA is ``responsible for managing the day-to-day operations of grant 
and subgrant supported activities,'' and for ``monitor[ing] grant and 
subgrant supported activities to assure compliance with applicable 
Federal requirements.'' Despite these requirements, given that 
incorrect eligibility determinations have been a pervasive problem in 
many States, we believe further regulation is necessary to avoid any 
uncertainty about an SEA's responsibility for all MEP eligibility 
determinations in the State--whether made directly by the SEA, or by 
its local operating agencies, subgrantees, or contractors.
Section 200.89(d) Responsibilities of an SEA To Establish and Implement 
a System of Quality Controls for the Proper Identification of Eligible 
Migratory Children
    Statute: Section 9304(a)(6) of the ESEA requires each SEA to 
provide an assurance that it will ``maintain such records * * * as the 
Secretary may find necessary to carry out the Secretary's duties,'' 
which would include the duty to collect the most accurate unduplicated 
counts possible of migratory children that each State had identified. 
However, the ESEA does not address the need of each SEA to maintain a 
system of quality controls designed to ensure the accuracy of child 
eligibility determinations under the MEP.

[[Page 25236]]

    Current Regulations: Current MEP regulations do not address a 
system of quality controls that all SEAs must have in place to ensure 
the accuracy of eligibility determinations.
    Proposed Regulations: Proposed Sec.  200.89(d) would establish 
minimum requirements for a system of quality controls that all SEAs 
would need to implement to ensure accurate child eligibility 
determinations.
    Reasons: Section 76.731 of EDGAR requires each SEA and subgrantee 
to ``keep records to show its compliance with program requirements.'' 
However, as with section 9403 of the ESEA, it does not identify the 
steps SEAs need to take to ensure that their records are accurate. 
Generally, further regulations of this kind are not necessary. The 
program statutes and regulations, the cost principles contained in 
Office of Management and Budget circulars, as well as generally 
accepted audit standards, usually provide sufficiently clear 
instructions. Indeed for many years, the Department has treated quality 
control as a matter simply to be addressed in successive revisions of 
non-regulatory guidance issued for the MEP.
    However, the findings of pervasive problems with prior eligibility 
determinations underscore that more is needed with regard to 
documentation of the correctness of determinations on migratory child 
eligibility. While the proposed regulations on prospective re-
interviewing in Sec.  200.89(b), if finalized, would be an important 
step to help confirm, after the fact, whether eligibility 
determinations have been correctly made, it would not be a substitute 
for front-end, process-oriented quality controls to make sure those 
determinations are made correctly at the beginning of the process.
    Consequently, the Secretary proposes the requirements in Sec.  
200.89(d) to establish a clear set of both front-end, process-oriented 
quality controls and after-the-fact, product-oriented quality controls 
that SEAs and their local operating agencies or contractors would be 
required to use to improve and ensure the accuracy of child eligibility 
determinations for the MEP. The Department has for years included many 
of these elements in successive versions of non-regulatory guidance it 
has issued for the MEP. However, it is possible that because the 
Department has treated this matter as deserving only of guidance, some 
SEAs may have de-emphasized the pivotal importance of sound quality 
control procedures. Establishing such procedures now as a regulatory 
requirement governing an SEA's receipt and expenditure of MEP funds 
will help to ensure that SEAs examine whether or not they are 
adequately addressing some of the factors--such as poor or infrequent 
recruiter training and supervision, and lack of substantive review of 
COEs--that the national re-interviewing initiative and OIG have 
identified as contributing to the prevalence of incorrect eligibility 
determinations.

Executive Order 12866

    Under Executive Order 12866, the Secretary must determine whether 
this regulatory action is ``significant'' and therefore subject to the 
requirements of the Executive Order and subject to review by the 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.

1. Potential Costs and Benefits

    Under Executive Order 12866, we have assessed the potential costs 
and benefits of this regulatory action.
    The potential costs associated with the proposed regulations are 
those resulting from statutory requirements and those we have 
determined to be necessary for administering this program effectively 
and efficiently. Elsewhere in this SUPPLEMENTARY INFORMATION section we 
identify and explain burdens specifically associated with information 
collection requirements. See the heading Paperwork Reduction Act of 
1995.
    In assessing the potential costs and benefits--both quantitative 
and qualitative--of this regulatory action, we have determined that the 
benefits would justify the costs.
    We have also determined that this regulatory action would not 
unduly interfere with State, local, and tribal governments in the 
exercise of their governmental functions.

Summary of Potential Costs and Benefits

    These proposed 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 the Secretary proposes to issue through this notice would 
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:
    <bullet> Adding measurable program outcomes to the State 
comprehensive MEP service delivery plan [Sec.  200.83] will cost 
approximately $600 annually;
    <bullet> Re-interviewing samples of students [Sec.  200.89(b)] will 
cost approximately $220,000 annually;
    <bullet> Documenting the eligibility of migratory children, 
including the use of a standard COE [Sec.  200.89(c)] will cost 
approximately $2.8 million annually; and
    <bullet> Institution of specific quality control procedures [Sec.  
200.89(d)] will cost approximately $1.5 million annually.
    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.
    The proposed 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 proposed regulations will add 
significantly to the consistency of eligibility determinations by 
standardizing the eligibility determination process nationally. The 
Department believes the activities required by the proposed regulations 
will be financed through the

[[Page 25237]]

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 proposed regulations will help maintain public confidence in 
the program and ensure its continued operational integrity. As 
discussed elsewhere in this notice, Department analyses have shown 
that, on average, close to 10 percent of the children identified by 
SEAs as eligible for services for school year 2003-04 did not meet the 
statutory eligibility criteria. The proposed regulations will 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 10 percent of currently participating children being determined 
ineligible, then some $38 million annually (10 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,\1\ 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.
---------------------------------------------------------------------------

    \1\ See, for example, Invisible Children: A portrait of migrant 
education in the United States, National Commission on Migrant 
Education, U.S. Govt. Printing Office, Sept. 23, 1992; and The same 
high standards for migrant students: Holding Title I schools 
accountable, United States Department of Education, Washington, DC, 
2002.
---------------------------------------------------------------------------

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

2. Clarity of the Regulations

    Executive Order 12866 and the Presidential memorandum on ``Plain 
Language in Government Writing'' require each agency to write 
regulations that are easy to understand.
    The Secretary invites comments on how to make these proposed 
regulations easier to understand, including answers to questions such 
as the following:
    <bullet> Are the requirements in the proposed regulations clearly 
stated?
    <bullet> Do the proposed regulations contain technical terms or 
other wording that interferes with their clarity?
    <bullet> Does the format of the proposed regulations (grouping and 
order of sections, use of headings, paragraphing, etc.) aid or reduce 
their clarity?
    <bullet> Would the proposed regulations be easier to understand if 
we divided them into more (but shorter) sections? (A ``section'' is 
preceded by the symbol ``Sec. '' and a numbered heading; for example, 
Sec.  200.81 Program Definitions.)
    <bullet> Could the description of the proposed regulations in the 
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in 
making the proposed regulations easier to understand? If so, how?
    <bullet> What else could we do to make the proposed regulations 
easier to understand?
    To send any comments that concern how the Department could make 
these proposed regulations easier to understand, see the instructions 
in the ADDRESSES section of the preamble.

Regulatory Flexibility Act Certification

    The Secretary certifies that these proposed regulations would not 
have a significant economic impact on a substantial number of small 
entities because these proposed regulations affect SEAs primarily. SEAs 
are not defined as ``small entities'' in the Regulatory Flexibility 
Act. The only small entities that could be subject to the proposed 
regulations would be small local educational agencies that receive MEP 
sub-grants from the SEA to act as ``local operating agencies'' under 
the MEP. In the case of these entities, as local operating agencies, 
they could be required to identify eligible migratory children; 
however, the costs of doing so would be financed through the State 
Title I, Part C MEP appropriation and would not impose a financial 
burden that a small entity would have to meet from non-Federal 
resources.

Paperwork Reduction Act of 1995

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

------------------------------------------------------------------------
                                      Collection
       Regulatory section             information         Collection
------------------------------------------------------------------------
Sec.   200.83...................  Requires SEAs to    ``Migrant
                                   add measurable      Education Program
                                   program outcomes    (MEP) Regulations
                                   into the            and Certificate
                                   comprehensive MEP   of Eligibility
                                   State plan for      (COE).'' OMB No.
                                   service delivery.   1910-0662.
Sec.   200.89(b)(1).............  Requires States to  ``Migrant
                                   conduct             Education Program
                                   retrospective re-   (MEP) Regulations
                                   interviewing.       and Certificate
                                                       of Eligibility
                                                       (COE).'' OMB No.
                                                       1910-0662.
Sec.   200.89(b)(2).............  Requires States to  ``Migrant
                                   conduct             Education Program
                                   retrospective re-   (MEP) Regulations
                                   interviewing.       and Certificate
                                                       of Eligibility
                                                       (COE).'' OMB No.
                                                       1910-0662.

[[Page 25238]]

 
Sec.   200.89(c)................  Requires States to  ``Migrant
                                   document the        Education Program
                                   eligibility of      (MEP) Regulations
                                   migratory           and Certificate
                                   children.           of Eligibility
                                                       (COE).'' OMB No.
                                                       1910-0662.
Sec.   200.89(d)................  Requires SEAs to    ``Migrant
                                   establish a         Education Program
                                   system of quality   (MEP) Regulations
                                   controls.           and Certificate
                                                       of Eligibility
                                                       (COE).'' OMB No.
                                                       1910-0662.
------------------------------------------------------------------------

    Respondents to this collection consist of State or local 
educational agencies. 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 and 0.5 hours per each of 4,500 
migrant parent respondents to address (on a one-time basis) the 
requirements of Sec.  200.89(b)(1) for retrospective re-interviewing. 
We estimate that it will require approximately 152 hours per each of 49 
State respondents and 0.5 hours per each of 2,450 migrant parent 
respondents to address (annually) the requirements of Sec.  
200.89(b)(2) for prospective re-interviewing. We estimate that it will 
require approximately 17,347 hours per each of 49 States and 1.5 hours 
per each of 300,000 parents (overall) to address the requirements of 
Sec.  200.89(c) for documenting the eligibility of migratory children. 
We estimate that it will require approximately 1,220 hours per each of 
49 States to address (annually) the requirements of Sec.  200.89(d) to 
establish and implement adequate quality controls. We also estimate 
that the data burden associated with the proposed change in Sec.  
200.83 to add measurable program outcomes into the comprehensive MEP 
State plan for service delivery will not total more than one hour.
    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 e-mail to 
<a href="/cdn-cgi/l/email-protection#37787e6576687378747c726377585a551952584719505841"><span class="__cf_email__" data-cfemail="226d6b70637d666d61696776624d4f400c474d520c454d54">[email protected]</span></a> 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 
ADDRESSES section of this preamble. We consider your comments on these 
proposed collections of information in--
    <bullet> Deciding whether the proposed collections are necessary 
for the proper performance of our functions, including whether the 
information will have practical use;
    <bullet> Evaluating the accuracy of our estimate of the burden of 
the proposed collections, including the validity of our methodology and 
assumptions;
    <bullet> Enhancing the quality, usefulness, and clarity of the 
information we collect; and
    <bullet> Minimizing the burden on those who must respond. This 
includes exploring the use of appropriate automated, electronic, 
mechanical, or other technological collection techniques or other forms 
of information technology; e.g., permitting electronic submission of 
responses.
    OMB is required to make a decision concerning the collections of 
information contained in these proposed regulations between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, to ensure that OMB gives your comments full consideration, 
it is important that OMB receives the comments within 30 days of 
publication. This does not affect the deadline for your comments to us 
on the proposed regulations.

Intergovernmental Review

    This program is subject to Executive Order 12372 and the 
regulations in 34 CFR part 79. One of the objectives of the Executive 
order is to foster an intergovernmental partnership and a strengthened 
federalism. The Executive order relies on processes developed by State 
and local governments for coordination and review of proposed Federal 
financial assistance.
    This document provides early notification of our specific plans and 
actions for this program.

Federalism

    Executive Order 13132 requires us to ensure meaningful and timely 
input by State and local elected officials in the development of 
regulatory policies that have federalism implications. ``Federalism 
implications'' means substantial direct effects on the States, on the 
relationship between the National Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. The proposed regulations in Sec. Sec.  200.81 through 
200.89 may have federalism implications, as defined in Executive Order 
13132, in that they will have some effect on the States and the 
operation of their State MEPs. It should be noted that several major 
components of the proposed regulations--i.e., the need for all SEAs to 
complete the retrospective re-interviewing and the need for more and 
clearer eligibility definitions--were proposed to the Department by 
various State and local MEP staff in numerous public meetings over the 
last several years. We encourage State and local elected officials to 
review and provide comments on these proposed regulations. To 
facilitate review and comment by appropriate State and local officials, 
the Department will, aside from publication in the Federal Register, 
post the NPRM to our MEP Web site and to the Office of Elementary and 
Secondary Education (OESE) Web site; make a specific email posting via 
a special listserv that is sent to each MEP State Director; and make a 
special posting to a more general MEP listserv that is accessed by 
State and local MEP staff other than State Directors.

Electronic Access to This Document

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

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

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

List of Subjects in 34 CFR Part 200

    Administrative practice and procedure, Adult education, Allocation

[[Page 25239]]

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: May 1, 2007.
Kerri L. Briggs,
Acting Assistant Secretary, for Elementary and Secondary Education.
    For the reasons discussed in the preamble, the Secretary proposes 
to amend part 200 of title 34 of the Code of Federal Regulations as 
follows:

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

    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 Sec.  200.81 to read as follows:


Sec.  200.81  Program definitions.

    The following definitions apply to programs and projects operated 
under subpart C of this part:
    (a) Agricultural work means the production or initial processing of 
crops, dairy products, poultry, or livestock, as well as the 
cultivation or harvesting of trees. It consists of work performed 
generally for wages or in rare cases personal subsistence.
    (b) Fishing work means the catching or initial processing of fish 
or shellfish or the raising or harvesting of fish or shellfish at fish 
farms. It consists of work performed generally for wages or in rare 
cases personal subsistence.
    (c) In order to obtain, when used to describe the purpose of a 
move, means that one of the purposes of the move is to seek or obtain 
temporary employment or seasonal employment in agricultural work or 
fishing work. 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.
    (d) Migratory agricultural worker means a person who, in the 
preceding 36 months, has moved 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 where the 
temporary employment or seasonal employment is a principal means of 
livelihood.
    (e) Migratory child means a child--
    (1) Who is a migratory agricultural worker or a migratory fisher; 
or
    (2) Who, in the preceding 36 months, in order to accompany or join 
a parent, spouse, or guardian who is a migratory agricultural worker or 
a migratory fisher--
    (i) Has moved from one school district to another;
    (ii) In a State that is comprised of a single school district, has 
moved from one administrative area to another within such district; or
    (iii) As the child of a migratory fisher, resides in a school 
district of more than 15,000 square miles, and migrates a distance of 
20 miles or more to a temporary residence.
    (f) Migratory fisher means a person who, in the preceding 36 
months, has moved 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 where the temporary employment or 
seasonal employment is a principal means of livelihood. 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 a distance 
of 20 miles or more to a temporary residence in order to obtain 
temporary employment or seasonal employment in fishing work where the 
temporary employment or seasonal employment is a principal means of 
livelihood.
    (g) Moved or Move means that a change from one residence to another 
residence was made in order to obtain temporary employment or seasonal 
employment in agricultural work or fishing work. This definition does 
not include travel or moves that occur during or after a vacation or 
holiday, or for other personal reasons unrelated to seeking or 
obtaining temporary employment or seasonal employment in agricultural 
work or fishing work even if this work is subsequently sought or 
obtained.
    (h) Personal subsistence means that the worker and his or her 
family perform such work in order to consume the crops, dairy products, 
or livestock they produce or the fish they catch in order to survive.
    (i) Principal means of livelihood means that temporary employment 
or seasonal employment in agricultural work or fishing work plays an 
important part in providing a living for the worker and his or her 
family.
    (j) Seasonal employment means employment that is dependent on the 
cycles of nature due to the specific meteorological or climatic 
conditions.
    (k) Temporary employment means employment that lasts for a limited 
period of time, usually a few months.
    (1) For example, it includes employment where:
    (i) The employer hires the worker for a limited time frame (e.g., 
for a three-month period). For example, a poultry processing plant 
hires extra workers during the months of September, October, and 
November to handle the increase in turkey production before 
Thanksgiving. In this example, an employer hires temporary workers 
during a period of peak demand.
    (ii) The employer hires the worker to perform a task that has a 
clearly defined beginning and end (e.g., digging an irrigation ditch or 
building a fence) and is not one of a series of activities that is 
typical of permanent employment.
    (iii) The worker does not intend to remain employed indefinitely 
(e.g., the worker states that he plans to leave the job after four 
months).
    (2) It does not include employment that is constant and year-round, 
except that an SEA may deem specific types of employment to be 
temporary if it 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 (e.g., they usually remain employed for 
only a few months), even though the work may be available on a year-
round basis. Such surveys must be conducted separately for each 
employer and job site (i.e., each farm or processing plant).

    (Authority: 20 U.S.C. 6391-6399, 6571)

    3. Amend Sec.  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:


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

    (a) * * *

[[Page 25240]]

    (3) Measurable program outcomes. The plan must include the 
measurable program outcomes (i.e., objectives) that a State's migrant 
education program will produce to meet the identified unique needs of 
migratory children and help migratory children achieve the State's 
performance targets identified in paragraph (a)(1) of this section.
    (4) Service delivery. The plan must describe the strategies that 
the SEA will pursue on a statewide basis to achieve the measurable 
program outcomes in paragraph (a)(3) of this section by addressing--
* * * * *
    4. Add Sec.  200.89 to read as follows:


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

    (a) Allocation of funds under the MEP for fiscal year (FY) 2006 and 
subsequent years. (1) For purposes of calculating the size of MEP 
awards for each SEA for FY 2006 and subsequent years, 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 re-interviewing process that the SEA has 
conducted.
    (2) The Secretary conditions an SEA's receipt of final FY 2006 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 2006-2007 MEP child 
counts.
    (b) Responsibilities of SEAs for re-interviewing to ensure the 
eligibility of children under the MEP--(1) Retrospective re-
interviewing.
    (i) As a condition for the continued receipt of MEP funds in FY 
2006 and subsequent years, an SEA that received such funds in FY 2005 
but did not implement a statewide re-interviewing process and submit a 
defect rate accepted by the Secretary under Sec.  200.89(a) must, 
within six months of the effective date of these regulations, or as 
subsequently required by the Secretary under paragraph (b)(2)(vii) of 
this section--
    (A) Conduct a statewide re-interviewing process consistent with 
paragraph (b)(1)(ii) of this section; and
    (B) Consistent with paragraph (b)(1)(iii) of this section, report 
to the Secretary on the procedures it has employed, its findings, its 
defect rate, and corrective actions it has taken or will take to avoid 
a recurrence of any problems found.
    (ii) At a minimum, the re-interviewing process must include--
    (A) Selection of a sample of identified migratory children (from 
the child counts of a particular year as directed by the Secretary) 
randomly selected on a statewide basis to allow the State to estimate 
the statewide proportion of eligible migratory children at a 95 percent 
confidence level with a confidence interval of plus or minus 5 percent.
    (B) Use of independent re-interviewers (i.e., interviewers who are 
neither SEA or local operating agency staff members working to 
administer or operate the State MEP nor any other persons who worked on 
the initial eligibility determinations being tested) trained to conduct 
personal interviews and to understand and apply program eligibility 
requirements; and
    (C) Calculation of a defect rate based on the number of sampled 
children determined ineligible as a percentage of those sampled 
children whose parent/guardian was actually re-interviewed.
    (iii) At a minimum, the report must include--
    (A) An explanation of the sample and procedures used in the SEA's 
re-interviewing process;
    (B) The findings of the re-interviewing process, including the 
determined defect rate;
    (C) An acknowledgement that, consistent with Sec.  200.89(a), the 
Secretary will 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. As part of the system of quality 
controls identified in Sec.  200.89(d), an SEA that receives MEP funds 
must, on an annual basis, validate current-year child eligibility 
determinations through the re-interview of a randomly selected sample 
of children previously identified as migratory. In conducting these re-
interviews, an SEA must--
    (i) Use, at least once every three years, one or more independent 
interviewers (i.e., interviewers who are neither SEA or local operating 
agency staff members working to administer or operate the State MEP nor 
any other persons who worked on the initial eligibility determinations 
being tested) trained to conduct personal interviews and to understand 
and apply program eligibility requirements;
    (ii) Select a random sample of identified migratory children so 
that a sufficient number of eligibility determinations in the current 
year are tested on a statewide basis or within strata 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 extraordinary circumstances make 
face-to-face re-interviews impractical and necessitate the use of an 
alternative method of 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 required by the Secretary, including retrospective 
re-interviewing.
    (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 develop and maintain 
such additional documentation as may be necessary to confirm that each 
child found eligible for this program meets all of the eligibility 
definitions in Sec.  200.81.
    (3) An SEA is responsible for the accuracy of all the 
determinations of the eligibility of migratory children identified in 
the State.

[[Page 25241]]

    (d) Responsibilities of an SEA to establish and implement a system 
of quality controls for the proper identification and recruitment of 
eligible migratory children. An SEA must establish and implement a 
system of quality controls for the proper identification and 
recruitment of eligible migratory children on a statewide basis. At a 
minimum, this system of quality controls must include the following 
components:
    (1) Training to ensure that recruiters and all other staff involved 
in determining eligibility and in conducting quality control procedures 
know the requirements for accurately determining and documenting child 
eligibility under the MEP.
    (2) Supervision and annual review and evaluation of the 
identification and recruitment practices of individual recruiters.
    (3) A formal process for resolving eligibility questions raised by 
recruiters and their supervisors and for transmitting responses to all 
local operating agencies in written form.
    (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 Sec.  200.89(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 audit findings and recommendations.

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

[FR Doc. E7-8580 Filed 5-3-07; 8:45 am]
BILLING CODE 4000-01-P


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