25228 Federal Register / Vol. 72, No. 86 / Friday, May 4, 2007 / Proposed Rules 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. The Administrator of the Office 

of Information and Regulatory Affairs 

has not designated it as a significant 

energy action. Therefore, it does not 

require a Statement of Energy Effects 

under Executive Order 13211. 

Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This proposed rule does not use 

technical standards. Therefore, we did 

not consider the use of voluntary 

consensus standards. 

Environment 

We have analyzed this proposed rule 

under Commandant Instruction 

M16475.lD and Department of 

Homeland Security Management 

Directive 5100.1, which guide the Coast 

Guard in complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have made a preliminary determination 

that there are no factors in this case that 

would limit the use of a categorical 

exclusion under section 2.B.2 of the 

Instruction. Therefore, we believe that 

this rule should be categorically 

excluded, under figure 2–1, paragraph 

(34)(g) of the Instruction, from further 

environmental documentation. This 

proposed rule establishes a safety zone 

and as such is covered by this 

paragraph. 

A preliminary ‘‘Environmental 

Analysis Check List’’ and ‘‘Categorical 

Exclusion Determination’’ are available 

in the docket where indicated under 

ADDRESSES. Comments on this section 

will be considered before we make the 

final decision on whether this rule 

should be categorically excluded from 

further environmental review. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard proposes to 

amend 33 CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 

Chapter 701; 50 U.S.C. 191, 195; 33 CFR 

1.05–1(g), 6.04–1, 6.04–6, and 160.5; Pub. L. 

107–295, 116 Stat. 2064; Department of 

Homeland Security Delegation No. 0170.1. 

2. Add § 165.935 to read as follows: 

§ 165.935 Safety Zone, Milwaukee Harbor, 

Milwaukee WI. 

(a) Location. The following area is a 

safety zone: the waters of Lake Michigan 

within Milwaukee Harbor including the 

Harbor Island Lagoon enclosed by a line 

connecting the following points: 

Beginning at 43°02′00′′ N, 087°53′53′′ W; 

then south to 43°01′44′′ N, 087°53′53′′ 

W; then east to 43°01′44′′ N, 087°53′25′′ 

W; then north to 43°02′00′′ N, 

087°53′53′′ W; then west to the point of 

origin. 

(b) Definitions. The following 

definitions apply to this section: 

(1) Designated representative means 

any Coast Guard commissioned, 

warrant, or petty officer designated by 

the Captain of the Port Lake Michigan 

to monitor this safety zone, permit entry 

into this zone, give legally enforceable 

orders to persons or vessels within this 

zones and take other actions authorized 

by the Captain of the Port. 

(2) Public vessel means vessels 

owned, chartered, or operated by the 

United States, or by a State or political 

subdivision thereof. 

(c) Regulations. (1) The general 

regulations in 33 CFR 165.23 apply. 

(2) All persons and vessels must 

comply with the instructions of the 

Coast Guard Captain of the Port or a 

designated representative. Upon being 

hailed by the U.S. Coast Guard by siren, 

radio, flashing light or other means, the 

operator of a vessel shall proceed as 

directed. 

(3) All vessels must obtain permission 

from the Captain of the Port or a 

designated representative to enter, move 

within or exit the safety zone 

established in this section when this 

safety zone is enforced. Vessels and 

persons granted permission to enter the 

safety zone shall obey all lawful orders 

or directions of the Captain of the Port 

or a designated representative. While 

within a safety zone, all vessels shall 

operate at the minimum speed 

necessary to maintain a safe course. 

(d) Suspension of Enforcement. If the 

event concludes earlier than scheduled, 

the Captain of the Port or a designated 

representative will issue a Broadcast 

Notice to Mariners notifying the public 

when enforcement of the safety zone 

established by this section is suspended. 

(e) Exemption. Public vessels as 

defined in paragraph (b) of this section 

are exempt from the requirements in 

this section. 

(f) Waiver. For any vessel, the Captain 

of the Port Lake Michigan or a 

designated representative may waive 

any of the requirements of this section, 

upon finding that operational 

conditions or other circumstances are 

such that application of this section is 

unnecessary or impractical for the 

purposes of safety or environmental 

safety. 

Dated: March 12, 2007. 

Bruce C. Jones, 

Captain, U.S. Coast Guard, Commander, 

Coast Guard Sector Lake Michigan. 

[FR Doc. E7–8614 Filed 5–3–07; 8:45 am] 

BILLING CODE 4910–15–P 

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. 

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 


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Federal Register / Vol. 72, No. 86 / Friday, May 4, 2007 / Proposed Rules 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. 

• 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. 

• 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: 

James.English@ed.gov. 

If you use a telecommunications 

device for the deaf (TDD), you may call 

the Federal Relay Service (FRS) at 

1–800–877–8339. 

Individuals with disabilities may 

obtain this document in an alternative 

format (e.g., Braille, large print, 

audiotape, or computer diskette) on 

request to the contact person listed 

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 MEPfunded 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 reinterviewing 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 reinterviewing 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 


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25230 Federal Register / Vol. 72, No. 86 / Friday, May 4, 2007 / Proposed Rules 

in the implementation of the MEP 

eligibility requirements. 

The OIG findings and the SEAreported defect rates are very troubling 

for several reasons. First, they suggest 

that the level and quality of MEPfunded 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 


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Federal Register / Vol. 72, No. 86 / Friday, May 4, 2007 / Proposed Rules 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 § 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 § 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 § 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 


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25232 Federal Register / Vol. 72, No. 86 / Friday, May 4, 2007 / Proposed Rules 

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 yearround. 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 nonregulatory 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. 


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Federal Register / Vol. 72, No. 86 / Friday, May 4, 2007 / Proposed Rules 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 § 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 

§ 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 § 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 Statesubmitted 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 

§ 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 

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25234 Federal Register / Vol. 72, No. 86 / Friday, May 4, 2007 / Proposed Rules 

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 reinterviewing 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 § 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 § 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 § 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 reinterviewing 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 

§ 200.89(b) would require SEAs to 

conduct retrospective and prospective 

re-interviewing of children to confirm 

their eligibility. Retrospective reinterviewing 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 reinterviewing 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 reinterviewing. 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 reinterviewing 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 § 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 reinterviewing 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 reinterviewers; and calculation of a defect 

rate based on the number of sampled 

children determined ineligible as a 

percentage of those sampled children 

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Federal Register / Vol. 72, No. 86 / Friday, May 4, 2007 / Proposed Rules 25235 

interviewed. The minimum elements for 

reporting on retrospective reinterviewing would include: An 

explanation of the sample and the reinterview 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 qualitycontrol system. (In this regard see the 

further discussion regarding proposed 

§ 200.89(d).) In particular, we now 

propose that all States be required to 

conduct a process of prospective reinterviewing to ensure that State 

migratory child counts are not again 

affected by improper eligibility 

determinations. As described in 

proposed § 200.89(b)(2), prospective reinterviewing 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 reinterview 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 reinterviewing 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 § 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 

§ 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 § 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. 


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25236 Federal Register / Vol. 72, No. 86 / Friday, May 4, 2007 / Proposed Rules 

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 

§ 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 reinterviewing in § 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, processoriented quality controls to make sure 

those determinations are made correctly 

at the beginning of the process. 

Consequently, the Secretary proposes 

the requirements in § 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 reinterviewing 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: 

• Adding measurable program 

outcomes to the State comprehensive 

MEP service delivery plan [§ 200.83] 

will cost approximately $600 annually; 

• Re-interviewing samples of students 

[§ 200.89(b)] will cost approximately 

$220,000 annually; 

• Documenting the eligibility of 

migratory children, including the use of 

a standard COE [§ 200.89(c)] will cost 

approximately $2.8 million annually; 

and 

• Institution of specific quality 

control procedures [§ 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 


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1See, 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. 

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 nonFederal 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 highpoverty schools. Migratory youth are at 

high risk for dropping out of school 

without attaining a high school 

diploma. Access to education can help 

mitigate the effect of these risk factors. 

Preschool education prepares small 

children for the demands of elementary 

education and encourages parents to 

become active learners along with their 

children. Children who receive 

educational services targeted to address 

their specific needs are more likely to be 

successful in school and to receive other 

marginal services, such as vaccinations 

and health screenings, that are 

associated with school attendance. 

Youth who complete high school 

generally earn more in their lifetime 

than those who don’t earn a high school 

diploma. These regulations benefit 

society because they require safeguards 

to ensure that the neediest migrant 

children will be identified and receive 

the services that will help them succeed 

in school. 

There is also a potential cost to 

migratory children if these regulations 

are not enacted. In the absence of 

regulations, recipients have diluted the 

quantity and quality of services 

available to children who are 

legitimately eligible for services under 

the program by serving significant 

numbers of children who are not 

eligible. Since MEP services are only 

available to eligible children for a short 

period of time, preventing truly eligible 

migratory children from receiving the 

services they are entitled to may have an 

adverse effect on their educational 

attainment. 

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: 

• Are the requirements in the 

proposed regulations clearly stated? 

• Do the proposed regulations contain 

technical terms or other wording that 

interferes with their clarity? 

• Does the format of the proposed 

regulations (grouping and order of 

sections, use of headings, paragraphing, 

etc.) aid or reduce their clarity? 

• Would the proposed regulations be 

easier to understand if we divided them 

into more (but shorter) sections? (A 

‘‘section’’ is preceded by the symbol ‘‘§’’ 

and a numbered heading; for example, 

§ 200.81 Program Definitions.) 

• Could the description of the 

proposed regulations in the 

SUPPLEMENTARY INFORMATION section of 

this preamble be more helpful in 

making the proposed regulations easier 

to understand? If so, how? 

• What else could we do to make the 

proposed regulations easier to 

understand? 

To send any comments that concern 

how the Department could make these 

proposed regulations easier to 

understand, see the instructions in the 

ADDRESSES section 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. 

Regulatory section Collection information Collection 

§ 200.83 ....................... Requires SEAs to add measurable program outcomes 

into the comprehensive MEP State plan for service delivery.

‘‘Migrant Education Program (MEP) Regulations and Certificate of Eligibility (COE).’’ OMB No. 1910–0662. 

§ 200.89(b)(1) ............... Requires States to conduct retrospective re-interviewing .. ‘‘Migrant Education Program (MEP) Regulations and Certificate of Eligibility (COE).’’ OMB No. 1910–0662. 

§ 200.89(b)(2) ............... Requires States to conduct retrospective re-interviewing .. ‘‘Migrant Education Program (MEP) Regulations and Certificate of Eligibility (COE).’’ OMB No. 1910–0662. 


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25238 Federal Register / Vol. 72, No. 86 / Friday, May 4, 2007 / Proposed Rules 

Regulatory section Collection information Collection 

§ 200.89(c) ................... Requires States to document the eligibility of migratory 

children.

‘‘Migrant Education Program (MEP) Regulations and Certificate of Eligibility (COE).’’ OMB No. 1910–0662. 

§ 200.89(d) ................... Requires SEAs to establish a system of quality controls ... ‘‘Migrant Education Program (MEP) Regulations 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 § 200.89(b)(1) 

for retrospective re-interviewing. We 

estimate that it will require 

approximately 152 hours per each of 49 

State respondents and 0.5 hours per 

each of 2,450 migrant parent 

respondents to address (annually) the 

requirements of § 200.89(b)(2) for 

prospective re-interviewing. We 

estimate that it will require 

approximately 17,347 hours per each of 

49 States and 1.5 hours per each of 

300,000 parents (overall) to address the 

requirements of § 200.89(c) for 

documenting the eligibility of migratory 

children. We estimate that it will 

require approximately 1,220 hours per 

each of 49 States to address (annually) 

the requirements of § 200.89(d) to 

establish and implement adequate 

quality controls. We also estimate that 

the data burden associated with the 

proposed change in § 200.83 to add 

measurable program outcomes into the 

comprehensive MEP State plan for 

service delivery will not total more than 

one hour. 

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 

OIRA_DOCKET@omb.eop.gov or via fax 

to (202) 395–6974. Commenters need 

only submit comments via one 

submission medium. You may also send 

a copy of these comments to the 

Department representative named in the 

ADDRESSES section of this preamble. We 

consider your comments on these 

proposed collections of information in— 

• Deciding whether the proposed 

collections are necessary for the proper 

performance of our functions, including 

whether the information will have 

practical use; 

• Evaluating the accuracy of our 

estimate of the burden of the proposed 

collections, including the validity of our 

methodology and assumptions; 

• Enhancing the quality, usefulness, 

and clarity of the information we 

collect; and 

• Minimizing the burden on those 

who must respond. This includes 

exploring the use of appropriate 

automated, electronic, mechanical, or 

other technological collection 

techniques or other forms of information 

technology; e.g., permitting electronic 

submission of responses. 

OMB is required to make a decision 

concerning the collections of 

information contained in these 

proposed regulations between 30 and 60 

days after publication of this document 

in the Federal Register. Therefore, to 

ensure that OMB gives your comments 

full consideration, it is important that 

OMB receives the comments within 30 

days of publication. 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 §§ 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 reinterviewing 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 


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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, Stateadministered 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 § 200.81 to read as follows: 

§ 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 threemonth 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 § 200.83 as follows: 

a. Redesignate paragraphs (a)(3) and 

(a)(4) as paragraphs (a)(4) and (a)(5), 

respectively, and add a new paragraph 

(a)(3). 

b. Revise the introductory text of 

redesignated paragraph (a)(4). 

The revision and addition read as 

follows: 

§ 200.83 Responsibilities of SEAs to 

implement projects through a 

comprehensive needs assessment and a 

comprehensive State plan for service 

delivery. 

(a) * * * 


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(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 § 200.89 to read as follows: 

§ 200.89 MEP allocations; Re-interviewing; 

Eligibility documentation; and Quality 

control. 

(a) Allocation of funds under the MEP 

for fiscal year (FY) 2006 and subsequent 

years. (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 subsequentyear MEP awards on the SEA’s 

completion of a thorough redocumentation 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 reinterviewing 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 

§ 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 reinterviewing 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 reinterviewers (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 reinterviewing process; 

(B) The findings of the re-interviewing 

process, including the determined 

defect rate; 

(C) An acknowledgement that, 

consistent with § 200.89(a), the 

Secretary 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 reinterviewing 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 § 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 reinterviews, 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-toface approach to conduct these reinterviews unless extraordinary 

circumstances make face-to-face reinterviews impractical and necessitate 

the use of an alternative method of reinterviewing; 

(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 reinterviewing 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 § 200.81. 

(3) An SEA is responsible for the 

accuracy of all the determinations of the 

eligibility of migratory children 

identified in the State. 


cprice-sewell on DSK89S0YB1PROD with RULES
Federal Register / Vol. 72, No. 86 / Friday, May 4, 2007 / Proposed Rules 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 § 200.89(b)(2). 

(6) Documentation that supports the 

SEA’s implementation of this qualitycontrol 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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R07–OAR–2007–0095; FRL–8309–4] 

Approval and Promulgation of 

Implementation Plans; State of 

Missouri 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA proposes to approve an 

amendment to the Missouri State 

Implementation Plan (SIP). This action 

approves an amendment to the SIPapproved Doe Run Herculaneum 

Consent Judgment to remove language 

specifying the exact bag technology to 

be used in the baghouses. Related 

performance standard requirements will 

remain unchanged. This action is 

independent and does not affect the 

revision to the Missouri SIP due in 

April 2007, in response to the SIP Call 

issued April 14, 2006, to bring the area 

of Herculaneum into compliance with 

the lead National Ambient Air Quality 

Standard. 

DATES: Comments on this proposed 

action must be received in writing by 

June 4, 2007. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R07– 

OAR–2007–0095 by one of the following 

methods: 

1. http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

2. E-mail: yoshimura.gwen@epa.gov. 

3. Mail: Gwen Yoshimura, 

Environmental Protection Agency, Air 

Planning and Development Branch, 901 

North 5th Street, Kansas City, Kansas 

66101. 

4. Hand Delivery or Courier. Deliver 

your comments to Gwen Yoshimura, 

Environmental Protection Agency, Air 

Planning and Development Branch, 901 

North 5th Street, Kansas City, Kansas 

66101. Such deliveries are only 

accepted during the Regional Office’s 

normal hours of operation. The Regional 

Office’s official hours of business are 

Monday through Friday, 8 to 4:30, 

excluding legal holidays. 

Please see the direct final rule which 

is located in the Rules section of this 

Federal Register for detailed 

instructions on how to submit 

comments. 

FOR FURTHER INFORMATION CONTACT: 

Gwen Yoshimura at (913) 551–7073, or 

by e-mail at yoshimura.gwen@epa.gov. 

SUPPLEMENTARY INFORMATION: In the 

final rules section of the Federal 

Register, EPA is approving the state’s 

SIP revision as a direct final rule 

without prior proposal because the 

Agency views this as a noncontroversial 

revision amendment and anticipates no 

relevant adverse comments to this 

action. The revisions will not increase 

emissions and do not affect the 

stringency of the control requirement. 

Additionally, the revisions have gone 

through the Missouri approval process, 

including a public hearing and 

opportunity for public comment. EPA 

was the only party to provide comments 

during Missouri’s comment period. 

Therefore, we do not anticipate any 

adverse comments. A detailed rationale 

for the approval is set forth in the direct 

final rule. If no relevant adverse 

comments are received in response to 

this action, no further activity is 

contemplated in relation to this action. 

If EPA receives relevant adverse 

comments, the direct final rule will be 

withdrawn and all public comments 

received will be addressed in a 

subsequent final rule based on this 

proposed action. EPA will not institute 

a second comment period on this action. 

Any parties interested in commenting 

on this action should do so at this time. 

Please note that if EPA receives adverse 

comment on part of this rule and if that 

part can be severed from the remainder 

of the rule, EPA may adopt as final 

those parts of the rule that are not the 

subject of an adverse comment. For 

additional information, see the direct 

final rule which is located in the rules 

section of this Federal Register. 

Dated: April 26, 2007. 

John B. Askew, 

Regional Administrator, Region 7. 

[FR Doc. E7–8566 Filed 5–3–07; 8:45 am] 

BILLING CODE 6560–50–P 


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