Final NPRM FRN Publication

Tuesday,
July 29, 2008

Part IV

Department of
Education

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34 CFR Part 200
Improving the Academic Achievement of
the Disadvantaged; Migrant Education
Program; Final Rule

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

DEPARTMENT OF EDUCATION
34 CFR Part 200
RIN 1810–AA99
[Docket Id 2007–ED–OESE–130]

Improving the Academic Achievement
of the Disadvantaged; Migrant
Education Program
Office of Elementary and
Secondary Education, Department of
Education.
ACTION: Final regulations.

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AGENCY:

SUMMARY: The Secretary amends the
regulations governing the Migrant
Education Program (MEP) administered
under Part C of Title I of the Elementary
and Secondary Education Act of 1965,
as amended (ESEA). These final
regulations adjust the base amounts of
the MEP Basic State Formula grant
allocations for fiscal year (FY) 2006 and
subsequent years (as well as for
supplemental MEP allocations made for
FY 2005); establish requirements to
strengthen the processes used by State
educational agencies (SEAs) to
determine and document the eligibility
of migratory children under the MEP;
and clarify procedures SEAs use to
develop a comprehensive statewide
needs assessment and service delivery
plan.
DATES: These regulations are effective
August 28, 2008. However, affected
parties do not have to comply with the
new information collection
requirements in §§ 200.83 and 200.89
until the Department of Education
publishes in the Federal Register the
control number assigned by the Office of
Management and Budget (OMB) to these
information collection requirements.
Publication of the control number
notifies the public that OMB has
approved these information collection
requirements under the Paperwork
Reduction Act of 1995.
FOR FURTHER INFORMATION CONTACT:
James J. English, U.S. Department of
Education, 400 Maryland Avenue, SW.,
Room 3E315, 20202–6135. Telephone:
(202) 260–1394 or via Internet:
[email protected].
If you use a telecommunications
device for the deaf (TDD), you may call
the Federal Relay Service (FRS) at
1–800–877–8339.
Individuals with disabilities may
obtain this document in an alternative
format (e.g., Braille, large print,
audiotape, or computer diskette) on
request to the contact person listed in
the preceding paragraph.
SUPPLEMENTARY INFORMATION: These
regulations implement requirements of

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the Migrant Education Program (MEP)
as authorized under Part C of Title I of
the ESEA, as amended. On May 4, 2007,
the Secretary published a notice of
proposed rulemaking (NPRM) for the
MEP in the Federal Register (72 FR
25228). In the preamble to the NPRM,
the Secretary discussed on pages 25230
through 25236 the major regulatory
changes proposed in that document.
These proposed changes consisted of
the following:
• Amending § 200.81 to add to and
improve program definitions governing
who is considered an eligible migratory
child.
• Amending § 200.83 to clarify that a
State’s comprehensive needs assessment
and plan for service delivery must, as
required by the ESEA, include
measurable program outcomes for the
MEP that relate to the performance
targets the State has established for all
children.
• Adding a new § 200.89(a) to
establish a procedure for the Secretary
to use State defect rates that the
Secretary accepts as the basis for
adjusting the 2000–2001 counts of
eligible migrant children, and, thereby
determine the base amount of a State’s
MEP award for FY 2006 and subsequent
years. This proposed regulation also
required, as a condition to an SEA’s
receipt of its final FY 2006 and
subsequent-year MEP awards, that an
SEA conduct a thorough redocumentation of the eligibility of all
children (and the removal of all
ineligible children) included in the
SEA’s 2006–2007 MEP child counts).
• Adding a new § 200.89(b) to
establish the minimum requirements an
SEA must meet in conducting—(a)
retrospective re-interviewing, where
needed, to examine and validate the
accuracy of its statewide eligibility
determinations under the MEP, and (b)
annual prospective re-interviewing in
order to ensure ongoing quality control
in all future eligibility determinations.
• Adding a new § 200.89(c) to—(1)
establish the minimum requirements an
SEA must meet in documenting its
eligibility determinations under the
MEP (including the use of a standard
Certificate of Eligibility (COE) form),
and (2) clarify that the SEA is
responsible for accurate determinations
of program eligibility.
• Adding a new § 200.89(d) to
establish minimum requirements for a
system of quality controls that an SEA
must implement in order to promote
accurate migrant child eligibility
determinations.
These final regulations contain the
following changes from the NPRM:

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• The definitions of agricultural work
and fishing work in § 200.81(a) and (b),
respectively, have been modified to
remove the terms ‘‘generally’’ and ‘‘in
rare cases’’ when referring to work done
for wages or personal subsistence.
• The definitions of in order to obtain
and move or moved in § 200.81(c) and
(g), respectively, have been revised to—
(1) remove contradictory language and
clarify that a move, for purposes of
determining MEP eligibility, must occur
due to economic necessity, (2) clarify
that individuals who state that a
purpose of their move was to seek any
type of employment, i.e., workers who
moved with no specific intent to find
employment in a particular job, are
deemed to have moved with a purpose
of obtaining qualifying work if the
worker obtains such work soon after the
move, and (3) clarify the information
that an SEA must have to determine that
a worker who did not obtain qualifying
work soon after a move did move in
order to obtain qualifying work.
• The definition of migratory
agricultural worker in § 200.81(d) has
been revised to clarify that agricultural
work includes dairy work.
• The definition of principal means of
livelihood in proposed § 200.81(i) has
been removed.
• The definitions of migratory
agricultural worker and migratory fisher
in §§ 200.81(d) and (f), respectively,
have been revised to remove the
reference to ‘‘principal means of
livelihood’’ and clarify that, in order to
establish MEP eligibility, a move as
defined in § 200.81(g) made by a
migratory agricultural worker or
migratory fisher must occur due ‘‘to
economic necessity.’’
• Section 200.81(h) has been revised
to clarify that the term personal
subsistence means that the worker and
his or her family, as a matter of the
family’s economic necessity, consume,
as a substantial portion of their food
intake, the crops, dairy products, and
livestock they produce or the fish that
they catch.
• To simplify the definition of in
order to obtain, we have added a new
definition of qualifying work in
§ 200.89(i) to mean temporary
employment or seasonal employment in
agricultural work or fishing work.
• The definition of seasonal
employment in § 200.81(j) has been
revised to clarify that seasonal
employment is employment that occurs
only during a certain period of the year
due to the cycles of nature and that, by
its nature, may not be continuous or
carried on throughout the year.
• The definition of temporary
employment in § 200.81(k) has been

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

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Analysis of Comments and Changes
In response to the Secretary’s
invitation in the NPRM, 26 parties
submitted over 125 comments on the
proposed regulations. An analysis of the
comments and of the changes in the
regulations since publication of the
NPRM follows. We discuss substantive
issues primarily under the sections of
the regulations to which they pertain.
Generally, we do not address technical
and other minor changes—and

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suggested changes the law does not
authorize the Secretary to make.
General
Comments: Several commenters noted
generally that the proposed regulations
clarified and more fully explained some
confusing elements of the current
regulations and non-regulatory
guidance. One commenter, however,
suggested that in light of Congress’
plans to reauthorize the ESEA, the
Department should wait to issue any of
the new regulations and, instead, revise
the Department’s non-regulatory
guidance on the MEP. Three other
commenters suggested that we not
change the program definitions prior to
reauthorization of the ESEA.
Discussion: The Secretary appreciates
the commenters’ recognition that the
proposed regulations represent an
attempt to clarify confusing issues in the
current regulations and non-regulatory
guidance.
The Secretary does not agree that
issuance of final regulations should
await the next ESEA reauthorization.
We do not know when Congress will
reauthorize the ESEA and the MEP, and
the issues addressed in these
regulations—improved definitions, an
updated allocations process, and
defined quality control procedures—are
needed now in order to resolve serious
problems and implement essential
improvements in program operations.
Moreover, the Secretary believes that
the definitions established in these final
regulations will continue to be useful,
even after reauthorization, in helping to
standardize and otherwise improve the
clarity and accuracy of State eligibility
determinations. These definitions will
help to ensure the basic integrity of the
MEP and that the MEP benefits those
children it is designed to serve.
Changes: None.
Paperwork Burden and Potential Costs
and Benefits
Comments: Five commenters
expressed concerns about the potential
costs and burden associated with
several sections of the proposed
regulations. Three commenters
expressed concern about the estimated
$4.5 million of annual additional costs
of collecting information needed to
implement the proposed regulations [72
FR 25236]. While acknowledging that
States already conduct some of these
activities in order to implement their
statutory responsibilities, these
commenters stated that much of these
additional costs would be attributable to
unnecessary activities that the
regulation would require. Another
commenter questioned the accuracy of

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

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general requirements for documentation
and program monitoring that are in 34
CFR 76.731 (section 76.31 of the
Education Department General
Administrative Regulations (EDGAR)).
For example, those provisions have
always required SEAs and their LOAs to
document the basis for determining that
a child meets the MEP eligibility
requirements, whether on a COE or in
another written record. They also have
required SEAs to review COEs in terms
of content and completeness, and
ensure training and oversight of staff
conducting identification and
recruitment. As we explained in the
information collection package
associated with these final regulations
that the Department submitted to OMB
[1810–0662], the annual total cost to
collect, review and update COEs—now
to be required by § 200.89(c), but
responsibilities that SEAs and their
LOAs already have—accounts for over
60 percent of the estimated ‘‘additional’’
$4.5 million annual cost.
In addition, the cost and burden-hour
estimates identified in the preamble to
the NPRM and the associated
information collection package
represent an average across all States.
The Secretary expects that States with
smaller MEP allocations will expend
considerably fewer hours and
considerably less program funds in
implementing these regulations than the
averages referred to in the preamble to
the NPRM in and the information
collection package. Of course,
conversely, States with large MEP
allocations will likely expend somewhat
greater amounts of effort and program
funds than the averages, but they also
receive proportionally more annual
MEP funding.
Finally, with regard to the cost of
validating the temporary nature of work
that otherwise appears to be constant
and year-round, the Secretary continues
to believe that such validation can be
accomplished at little or no additional
expense or burden as part of the process
that SEAs now conduct to annually
update prior eligibility and continued
residency of migrant children. However,
as discussed elsewhere in these final
regulations, the Secretary is simplifying
this requirement.
The Secretary continues to believe,
based on both the expertise of
Departmental staff with prior State-level
experience and discussions with State
MEP staff, that the Department’s cost
estimates for re-interviews, determining
eligibility, and updating COEs represent
a reasonable estimate of the average
time needed to carry out these activities.
However, we note that the public will
have another opportunity to comment

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on the burden as estimated in the OMB
information package [1810–0662] before
the information requirements of the
final regulation become effective. The
Secretary will take into consideration
any other comments received from the
public on these issues.
Changes: None.
Section 200.81 Program definitions.
Section 200.81(a) and (b)—
Agricultural work and Fishing work.
Comments: Two commenters
indicated that they had no substantive
concerns with the proposed changes to
these definitions. However, other
commenters expressed concern that the
proposed changes would unnecessarily
restrict MEP eligibility or create
problems in identifying exactly which
workers perform temporary or seasonal
agricultural or fishing work.
As a point of reference, current
regulations (34 CFR 200.81(a)(1)) define
an agricultural activity to include ‘‘[a]ny
activity directly related to the * * *
processing of crops, dairy products,
poultry or livestock for initial
commercial sale or personal
subsistence.’’ The current definition of a
fishing activity in 34 CFR 200.81(b)
contains a similar phrase. Aside from
proposing to change the term ‘‘activity’’
to ‘‘work’’ in each definition so as to
conform to the terms used in the
statutory definition of migratory child,
we proposed to revise the phrase
‘‘processing * * * for initial
commercial sale’’ in both definitions to
state simply ‘‘for initial processing.’’ We
also proposed to eliminate the phrase
‘‘directly related to’’ in both definitions.
With respect to these proposed
changes, several commenters stated that
it would be difficult to determine when
‘‘initial processing’’ ends, i.e., what
particular phases or types of agricultural
or fish processing work would be
considered ‘‘initial processing.’’ One
commenter asked whether planting or
clearing a farm field might be
considered ‘‘initial processing.’’ Some
commenters suggested that the final
regulations define the term ‘‘initial
processing;’’ one of these commenters
suggested that the term cover multiple
stages of activity, perhaps up through
the point of initial commercial sale
either because it will be difficult to
decide when ‘‘initial processing’’ ends,
or because there may be processes
constituting refinement of the raw
product that occur after ‘‘initial
processing’’ that should still reasonably
be considered a qualifying activity.
Other commenters recommended that
before adopting final regulations, the
Secretary further study the various
processing industries to identify which

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activities can reasonably be considered
‘‘initial processing.’’
Another commenter asked that we
retain the language, ‘‘any activity
directly related to,’’ that is in the current
definitions because it helps a State
distinguish between workers who are
handling the crops and, therefore,
would be eligible for the MEP, and the
crew chiefs, mechanics, and other
workers (e.g., inventory clerks) who
might be employed on a farm but would
not be eligible. Another commenter
stated that we should retain the
language ‘‘initial commercial sale’’
because it establishes a point after
which work is no longer qualifying for
purposes of the MEP.
With regard to our proposal to include
in the definition of fishing work a
statement that this work ‘‘consists of
work generally performed for wages or
in rare cases personal subsistence,’’ two
commenters recommended that we
remove the phrase ‘‘in rare cases’’
because some States have substantial
populations that fish for subsistence
purposes rather than fish for wages.
Finally, another commenter
recommended including the hunting or
harvesting of whales, walruses, and
seals in the definition of fishing work
because these activities are conducted
for personal subsistence.
Discussion: We proposed to remove
the phrases ‘‘an activity directly related
to’’ and ‘‘initial commercial sale’’ that
are in the current definitions because
we found that these phrases were vague,
difficult to apply, and applied
differently in different States. We
believe that referring to ‘‘initial
processing,’’ which as stated in the
NPRM [72 FR 25230] involves working
with ‘‘raw products,’’ will enable State
and local MEP personnel to identify
more precisely the particular (and more
limited) types of work, especially
processing work, that can reasonably be
considered agricultural or fishing work
for purposes of establishing eligibility
under the MEP.
We do not agree that the regulations
should define the term ‘‘initial
processing’’ more specifically. We think
that States may find it more helpful for
the Department to address in nonregulatory guidance how this term
applies in specific circumstances. This
approach will provide SEAs with
greater flexibility to consider particular
situations in different processing
industries—each of which has different
sets of jobs that can reasonably be
considered ‘‘initial processing’’ and
different points in the processing cycle
where ‘‘initial processing’’ (i.e., of a raw
product into a more refined product)
might reasonably be determined to end.

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With respect to the last sentence of
the definitions of both agricultural work
and fishing work that, as proposed,
provided that the work would be
performed ‘‘generally for wages’’ or ‘‘in
rare cases personal subsistence,’’ the
Secretary believes that migratory work
for purposes of personal subsistence is,
in general, a rare occurrence nationally
and that most of the work is performed
for wages. However, the Secretary agrees
to remove the phrases ‘‘generally’’ and
‘‘in rare cases’’ to avoid any further
confusion.
Finally, the Secretary does not agree
that the hunting or harvesting of whales,
walruses, or seals should be included in
the definition of fishing work as the
commenter suggested. The ESEA
provides that eligibility under the MEP
depends on work in agriculture or
fishing. While the Secretary recognizes
that whales, walruses, or seals are
harvested for personal subsistence,
these animals are not fish, and catching
or processing them cannot be
considered to be fishing work.
Moreover, excluding the catching or
processing of these animals from
eligible agricultural or fishing work is
consistent with the Department’s
longstanding policy that hunting of
deer, moose, or elk or their processing
into venison is not an agricultural
activity and so, likewise, cannot support
a child’s eligibility under the MEP.
Changes: The definitions of
agricultural work in § 200.81(a) and
fishing work in § 200.81(b) have been
revised to remove the language
‘‘generally’’ and ‘‘in rare cases’’ from the
last sentence of the definition.
Section 200.81(c) In order to obtain.
Comments: We received a number of
comments about our proposed
definition of in order to obtain. This
term is used in section 1309(2) of the
ESEA, which defines a migratory child
as a child who is, or whose parent or
spouse is, a migratory agricultural
worker, including a migratory dairy
worker, or a migratory fisher, and who
in the preceding 36 months, has moved
from one school district to another ‘‘in
order to obtain’’ temporary or seasonal
employment in agricultural or fishing
work.
Believing that the statutory phrase ‘‘in
order to obtain’’ means that MEP
eligibility hinges on making a move for
the purpose of seeking or obtaining this
work, yet acknowledging that workers
may move to a particular location for a
number of reasons, the Secretary
proposed in the NPRM to define the
phrase ‘‘in order to obtain’’ more
flexibly than in our current nonregulatory guidance. Specifically, while
the current non-regulatory guidance

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speaks of a worker’s ‘‘primary purpose’’
being to obtain temporary or seasonal
employment in agricultural or fishing
work, we proposed that in order to
obtain mean that obtaining this work
might be one of several purposes for the
worker’s move.
Several of the commenters asserted
that the proposed definition was
inconsistent with legislative intent as
well as language contained in earlier
Departmental non-regulatory guidance,
which provided, with a number of
exceptions, that a move qualified if the
worker had obtained the work ‘‘as a
result of the move.’’ These commenters
asserted that the Department’s rationale
for proposing this change was incorrect,
and that Congress included the phrase
‘‘in order to obtain’’ in the definition of
a migratory child only to clarify that a
family who moves to obtain qualifying
work but is unable to obtain such work
may still be eligible for the MEP.
Other commenters stated that the
proposed definition would unduly
complicate program eligibility
determinations and, therefore, the
definition was impractical and
unreasonable. Some commenters
suggested that the Department’s
interpretation would require recruiters
to interrogate families in order to probe
their intent for making a move, which
in turn would so alienate families that
they would choose not to participate in
the program—causing eligible children
to go without MEP services.
Commenters also noted that
permitting eligibility only if parents
assert that the purpose of their move
was to obtain qualifying work is
problematic. They noted that workers
often: may move for several reasons;
may lack the education or language
ability to explain the intent of a move;
may be unwilling to disclose their
intent; and may give different reasons
for the same move depending on which
family member is asked.
Several of the commenters
recommended that the Department’s
final regulations provide that a child is
eligible for the MEP if a family simply
moves across school district lines,
obtains or seeks temporary or seasonal
employment in agricultural or fishing
work in the new district, and meets all
other eligibility criteria. These
commenters stressed that the family
should not have to clearly articulate or
demonstrate that one of the purposes of
the move was to seek or obtain seasonal
or temporary employment in
agricultural or fishing work.
Other commenters recommended that
the regulations be modified to provide
that families who move with the intent
of obtaining either non-qualifying work

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or any work, but who subsequently
obtain temporary or seasonal
employment in agricultural or fishing
work, should be eligible for MEP
services.
Discussion: The Secretary continues
to believe, as expressed in the NPRM
[72 FR 25231], that the statutory
definition of a migratory child in section
1309(2) of the ESEA requires that MEP
eligibility be based on a worker’s move
from one school district to another for
the purpose of obtaining temporary or
seasonal employment in agricultural or
fishing work. The statutory definition
applies to each child eligible for the
MEP. While we have endeavored to do
so, we simply are unable to read the
phrase that a worker moved ‘‘in order to
obtain’’ temporary or seasonal
employment in agricultural or fishing
work in such a way as those
commenters, who wish to eliminate the
need for the move to be made at least
in part for a qualifying purpose or intent
to move, would have us do. The
statutory phrase ‘‘in order to obtain’’ can
only mean purpose or intent, and the
Department has no authority to interpret
the statute otherwise. Moreover, we are
aware of no legislative history that
reveals that Congress intended the
definition of a migratory child to mean
something other than that the worker
move ‘‘in order to obtain,’’ i.e., with a
purpose or intent of obtaining, after the
move, temporary or seasonal
employment in agricultural or fishing
work.
Thus, we are unable to construe the
phrase ‘‘in order to obtain’’ to apply
only to workers who move and who
only then look for or find temporary or
seasonal employment in agriculture or
fishing work. Similarly, we are unable
to construe the phrase and its
underlying concept of intent to apply
only to those workers who move to seek
but, thereafter, do not find temporary or
seasonal employment in agricultural or
fishing work.
However, the Secretary is satisfied
that the regulations can be modified,
consistent with the statutory language,
to address and accommodate what we
understand to be the commenters’
principal objections and objectives.
The Secretary recognizes the very real
challenges SEAs face in determining
and documenting, after the fact, whether
or not each individual worker has
moved in order to obtain temporary or
seasonal employment in agricultural or
fishing work. Any number of factors,
including a family’s poverty, the
inability to adequately articulate the
English language, a desire for privacy, a
desire for children to receive the
supplemental services the MEP may

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

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seasonal employment in agricultural or
fishing work. Of course, if an individual
expresses a specific intent to obtain only
a job in work that does not qualify
under the MEP, a State could not
determine that this individual moved in
order to obtain the requisite qualifying
work.
Changes: The Secretary has revised
the definition of in order to obtain to
provide that in circumstances in which
a worker expresses an intent to have
moved for any type of employment, as
opposed to a specific intent to obtain
only non-qualifying employment, an
SEA may deem that one of the purposes
of the individual’s move was to obtain
qualifying employment if the worker
obtains such work soon after the move.
Comment: Two commenters
expressed concern that the second
sentence of the proposed definition of in
order to obtain could be read as
preventing those who do not have an
offer or potential offer of employment in
temporary or seasonal employment in
agricultural or fishing work prior to
moving from being eligible for the MEP.
This sentence, as proposed, stated:
‘‘A worker has not moved in order to
obtain temporary employment or seasonal
employment in agricultural work or fishing
work if the worker would have changed
residence even if temporary employment or
seasonal employment in agricultural work or
fishing work were unavailable.’’

Another commenter expressed
concern that the proposed definition
could be read in exactly the opposite
way to exclude individuals who move
knowing that they have a job, since they
are not moving in order to seek or obtain
work. This commenter was also
concerned that the definition might
exclude individuals who moved
without knowing that the temporary or
seasonal agricultural or fishing work
they traditionally performed in a
location was unavailable because of
unusual circumstances such as a flood
or a drought.
Discussion: The language of the
proposed definition was not meant to
restrict the eligibility of families
migrating in any of the three scenarios
presented by the commenters. However,
to avoid any further confusion, and to
promote program integrity, the Secretary
has revised the definition to clarify that
in the case where a worker does not
secure qualifying work soon after a
move, more information than just a
statement by the worker is needed to
confirm that the worker moved in order
to obtain that qualifying work. Such
additional information would be—either
a prior history of moving to obtain
qualifying work or, especially for those
who never before migrated and so have

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no work history, some other credible
evidence that the worker actively sought
the qualifying work soon after the move
(e.g., a work application at various local
farms or processors; a farmer’s
affirmation that the worker applied for
work but none was available; newspaper
clippings documenting a recent drought
in the area).
Changes: The Secretary has revised
the definition of in order to obtain to
clarify that—
(1) If a worker states that a purpose of
the move was to seek any type of
employment, i.e., the worker moved
without a specific intent to find work in
a particular job, the worker is deemed
to have moved with a purpose of
obtaining qualifying work if the worker
obtains qualifying work soon after the
move, but that—
(2) A worker who did not obtain
qualifying work soon after a move may
be considered to have moved in order to
obtain qualifying work only if the
worker states that at least one purpose
of the move was specifically to seek this
work, and (a) the worker is found to
have a prior history of moves to obtain
qualifying work, or (b) there is other
credible evidence that the worker
actively sought qualifying work soon
after the move but, for reasons beyond
the worker’s control, the work was not
available.
Section 200.81(d) Migratory
agricultural worker.
Comments: Several commenters
expressed concern that the proposed
removal of the phrase ‘‘including dairy
work’’ from the definition of a migratory
agricultural worker would lessen the
acceptance of such work as an
appropriate migratory activity even
though the definition of agricultural
work refers to ‘‘the production or initial
processing of * * * dairy products
[emphasis added].’’ These commenters
asked that the Secretary not remove this
phrase.
Discussion: The proposed removal of
the reference to dairy work from the
definition of migratory agricultural
worker was purely editorial given that
the proposed new definition of
agricultural work clearly includes the
production and processing of dairy
products. However, upon further
consideration of the comments, the
Secretary agrees to make the change
requested by the commenter.
Changes: We have modified the
definition of migratory agricultural
worker to include a reference to ‘‘dairy
work.’’
Section 200.81(e) Migratory child.
Comments: Several commenters
expressed support for the proposed
definition of a migratory child, noting

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that it would be helpful in clarifying
that an emancipated youth who moves
in his or her own right as a migratory
agricultural worker or a migratory fisher
would meet the definition. One
commenter stated that additional
guidance would be necessary regarding
how to document eligibility for these
children who move on their own to seek
or obtain temporary or seasonal
agricultural or fishing work.
Two commenters asked that we
clarify our statement in the preamble of
the NPRM [72 FR 25231] that a
migratory child includes both a child
who accompanied a migratory worker
and a child who has joined a migratory
worker in a reasonable period of time.
The commenters recommended that the
Secretary provide a definition of ‘‘a
reasonable period of time.’’ With respect
to a child who joins a worker after the
worker has moved, one commenter
recommended that we revise the
definition to clarify that this type of ‘‘to
join’’ move includes a move where
children move ahead of the parent—e.g.,
when a worker secures work in a new
town that does not begin immediately
but sends the child first to live with
family or friends in the new town and
so start school there without any
educational disruption.
Finally, another commenter suggested
that we revise the definition to specify
that a migratory child is ‘‘a child or
youth between * * * 3 and 21 years of
age.’’
Discussion: The Secretary does not
agree that it is necessary or desirable to
(1) define in regulations how close in
time to the parent’s move a child’s move
must be in order to permit the child to
have moved to join the migratory
worker, or (2) address specific fact
situations, such as when a move is made
by a child in advance of a move made
by the parent. These issues can be better
and more fully addressed in nonregulatory guidance. Revising the
definition to specify the age range of an
eligible migratory child as between 3
and 21 is also not needed. First, the
upper age limit of any ‘‘child’’ who
would be served by the MEP and any
other of the Title I programs is already
established in the definition of child in
the Title I regulations in 34 CFR
200.103(a). Moreover, the age range of 3
through 21 only applies to the migratory
children counted and reported by the
SEAs for purposes of determining the
MEP State grant allocations using the
formula under section 1303 of ESEA.
Consistent with their comprehensive
needs assessment and service delivery
plan (see section 1306(a) of the ESEA
and § 200.83), as well as § 200.103
(which allows services to preschool

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children) and sections 1115(b)(1) and
1304(c)(2) of the ESEA (which allow
services to children below school-age),
SEAs may provide eligible migrant
children below the age of three with
MEP services.
Changes: None.
Section 200.81(f) Migratory fisher.
Comments: One commenter expressed
concern that the proposed definition of
a migratory fisher did not address
several specific fact situations, such as
when an individual involved in fishing
crosses school district lines but does not
leave the fishing boat, or when an
individual makes a number of moves of
short duration during the fishing season.
Discussion: The Secretary does not
believe it is desirable or possible to have
the regulations address specific fact
patterns regarding migratory fishing,
such as those the commenter raised. The
issues raised by this commenter can be
better and more fully addressed in nonregulatory guidance. The Department
intends to issue such guidance
following the issuance of these final
regulations.
Changes: None.
Section 200.81(g) Move or Moved.
Comments: We received a number of
comments on the proposed definition of
move or moved. One commenter
suggested that we delete the definition
because it would not consider workers
who move and return to previously held
employment to have made a move for
purposes of the MEP.
Several commenters generally agreed
that travel for vacation, holidays, or
other personal reasons unrelated to
obtaining work should not be
considered moves for purposes of the
MEP. Some commenters, however,
expressed concern about the meaning of
the terms ‘‘vacation’’ and ‘‘holiday,’’
noting that these terms could be
understood differently by migratory
families and MEP administrators due to
cultural differences. A number of
commenters also expressed concern that
the meaning of the phrase ‘‘during or
after’’ a vacation or holiday was unclear
and confusing. These commenters asked
whether the use of the word ‘‘during’’
should be read to exclude all travel that
occurs on or overlaps either a specific
holiday such as Christmas, or that
occurs during a scheduled school
holiday or the summer vacation from
school. Commenters noted that reading
the definition in this manner could
penalize families who wait for breaks in
schooling to move so as not to cause
their children to experience educational
interruption. The commenters stated
that using this definition as proposed
could create a perverse incentive for
families to make moves during the

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school year in order to continue to be
eligible for the MEP.
Commenters also said that they
thought the word ‘‘after’’ in the phrase
‘‘during or after a vacation or holiday’’
was ambiguous. They asked if moving
after a vacation or holiday meant that
any move by a family ‘‘after’’ a vacation
would not be considered a move for
purposes of the MEP, or how long a
period after a vacation or holiday must
pass before a family’s next move to seek
or obtain temporary or seasonal
agricultural or fishing work would be
considered a move for purposes of the
MEP. One commenter expressed the
opinion that the time at which a move
occurs is irrelevant so long as the move
meets the basic conditions in the
statute. Various commenters noted that
some migrant families move for work
during a school vacation period, and
some suggested revising the definition
either to delete the phrase ‘‘during or
after a vacation or holiday’’ entirely or
to clarify what we mean by the phrase.
In that regard, two commenters
suggested that we consider the fact that
in some cultures travel of more than 30
days, without pay, and with a clear
break in employment would not be
considered a vacation.
Several commenters noted that the
proposed definition of move or moved
was inconsistent with the proposed
definition of in order to obtain. They
commented that the proposed definition
of move or moved did not allow travel
for certain specific reasons—i.e.,
vacations or holidays, or any personal
reasons unrelated to seeking or
obtaining temporary or seasonal
employment in agricultural or fishing
work—while the proposed definition of
in order to obtain would more generally
have allowed a move to be made for
multiple purposes so long as one of the
purposes was to seek or obtain
temporary or seasonal employment in
agricultural or fishing work. The
commenters expressed concern that the
proposed definition of move or moved
could prevent a family from qualifying
for the MEP if it moved both to seek or
obtain temporary or seasonal
employment in agricultural or fishing
work and for another personal reason.
One commenter suggested revising the
definition to clarify that moves that
occur only as a result of a vacation,
holiday or other personal reasons are
not considered to be moves for purposes
of the MEP even if temporary or
seasonal employment in agricultural or
fishing work is sought or obtained.
Finally, two commenters asked that
we clarify the meaning of the term
‘‘residence’’ and the phrase a ‘‘change
from one residence to another

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residence’’ in the proposed definition.
They variously recommended that the
Department clarify whether boats,
vehicles, tents, trailers, or relatives’
homes would be considered residences
under the definition. Given these
considerations, a commenter suggested
changing the term ‘‘residence’’ to
‘‘location.’’
Discussion: The statutory definition of
migratory child in section 1309(2) of the
ESEA, as in all similar definitions
contained in prior authorizations of the
MEP, focuses on the need for a worker
to move in order to obtain certain kinds
of employment. Yet, recent audit
findings 1 have highlighted situations in
which children were found eligible for
the program based on moves, such as
those made during periods of school
vacations, that a family makes in order
to return to the children’s regular school
community. Given the desirability of
clarifying when a move of this kind can
qualify a child for MEP eligibility and
when it cannot, the proposed
regulations were designed to identify
more clearly those situations in which
a family’s move would not be sufficient
to establish MEP eligibility.
In reviewing the comments, the
Secretary agrees that the proposed
definition was inconsistent with the
definition of in order to obtain. To
address the concerns raised by the
commenters, we are revising the
definition of move or moved in the final
regulations to provide that the change
must be from one residence to another
residence that occurs due to economic
necessity. This change fits the purposes
of the MEP and clarifies that for the
MEP, a move that is not made due to
economic necessity is not a ‘‘move’’ for
purposes of MEP eligibility. With this
change, it is not necessary to address in
the regulations the particularities of
moves that were made for vacation,
holiday, or personal reasons unrelated
to the family’s economic need. This
change also eliminates the
inconsistency between this definition
and the definition of in order to obtain.
The Secretary agrees it will be useful
to provide clarification about what
constitutes a residence, as well as what
constitutes economic necessity. These
clarifications— as well as others, such
as when and how to recognize a move
that constitutes a true vacation (e.g., to/
from a resort, visits to family and
friends) and thus does not involve
economic necessity—will also be
provided in non-regulatory guidance
1 See, e.g., the Department’s Office of Inspector
General audit of the California MEP, report No. ED
OIG/A05G0032.

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following issuance of the final
regulations.
Changes: The Secretary has revised
the definition of move or moved to
provide that, for purposes of
establishing eligibility under the MEP, a
move must be a change from one
residence to another residence that
occurs due to economic necessity.
Section 200.81(h) Personal
subsistence.
Comments: Several commenters
supported the proposed definition of
personal subsistence. Other commenters
expressed several concerns. One
commenter said that the phrase ‘‘in
order to survive’’ is somewhat
subjective and may set a different
standard than is required for ‘‘principal
means of livelihood.’’ Another
commenter asked whether the definition
requires a differentiation between a
worker and grower, and a farmer or
consumer, and whether a person who
works land he or she leases would be
covered under the definition. Two of the
commenters recommended either
removing the definition of personal
subsistence or changing the phrase ‘‘in
order to survive’’ to ‘‘as an important
part of personal consumption.’’
Discussion: The Secretary agrees that
the language of the proposed definition
did not adequately describe the concept
of personal subsistence, and we have
revised the definition to provide a better
description. However, in making the
revisions, the Secretary does not agree
that the differences between worker,
grower, farmer, consumer or leaseholder are relevant to, or need to be
specifically addressed in, this
definition. We believe that these
differences are clear in the definitions of
agricultural work and fishing work,
which specifically provide that the work
must be performed only for wages or
personal subsistence.
Changes: We have revised the
definition of personal subsistence to
provide that the worker and his or her
family, as a matter of economic
necessity, consume, as a substantial
portion of their food intake, the crops,
dairy products, or livestock they
produce or the fish they catch.
Section 200.81(i) Principal means of
livelihood.
Comments: Several commenters
recommended that we eliminate the
definition of principal means of
livelihood and remove the term from the
definitions of migratory agricultural
worker and migratory fisher. (Those
definitions had provided that the
temporary or seasonal employment in
agricultural work or fishing work a
migratory worker obtains must be a
‘‘principal means of livelihood’’—i.e.,

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that it must play an important part in
providing a living for the worker and his
or her family.) Three commenters
questioned the legal basis for this
regulatory requirement. Several
commenters were concerned that
requiring the qualifying work to be a
principal means of livelihood might be
interpreted in some places as requiring
an income or means test for determining
MEP eligibility. Another commenter
suggested that the definition is
unnecessary because it is clear most
migratory families live in extreme
poverty, and because the questions
some recruiters may ask to determine
principal means of livelihood can be
viewed by the migratory families as
offensive and intrusive and can lead to
refusals to participate in the program.
Discussion: The proposed definition
of principal means of livelihood is in
the current regulations and we did not
propose to modify it in the NPRM. As
discussed at length in the preamble to
the final regulations for the MEP
published in the Federal Register on
July 3, 1995 [60 FR 34826], the
Department established the principal
means of livelihood requirement to
ensure that, consistent with
congressional purpose, the MEP focuses
on children who have a significant
economic tie to migratory agricultural or
fishing work. This said, upon
consideration of the comments, the
Secretary agrees that, with the other
changes being made to these
regulations, the principal means of
livelihood requirement is no longer
needed. The Secretary believes that the
other changes, which clarify that a
migratory agricultural worker or a
migratory fisher is a person who moves
due to economic necessity in order to
obtain temporary or seasonal
employment in agricultural or fishing
work, will satisfactorily address the
purpose of the principal means of
livelihood requirement.
Changes: The definition of principal
means of livelihood in proposed
§ 200.81(i) has been deleted and the
term has been removed from the
definitions of migratory agricultural
worker and migratory fisher.
Section 200.81(i) Qualifying work.
Comments: None.
Discussion: As revised, the definition
of the phrase in order to obtain would
be very cumbersome without a term that
could be used to abbreviate the phrase
‘‘temporary employment or seasonal
employment in agricultural work or
fishing work.’’ We believe the public
generally understands this longer phrase
to mean ‘‘qualifying work,’’ and so we
are including a new definition of this
term in these final regulations.

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Change: A new definition of
qualifying work has been added in new
§ 200.81(i) that provides that such work
means temporary employment or
seasonal employment in agricultural
work or fishing work.
Section 200.81(j) Seasonal
employment.
Comments: Two commenters
supported our proposed definition of
seasonal employment. However, several
others expressed concern that the
definition was too narrow because it
indicated that the employment is
dependent on the cycles of nature due
only to the specific meteorological or
climactic conditions. One commenter
suggested that this definition did not
account for work that is seasonal in
nature due to choices made by the
employers or the workforce. Three other
commenters expressed concern that the
emphasis on ‘‘specific meteorological or
climatic conditions’’ was too limited
because some crops, such as
mushrooms, are grown indoors and,
therefore, would not be affected by
meteorological or climatic conditions.
Commenters also noted that other crops,
such as citrus fruit and other crops
grown in warmer climates such as
Florida and California, have to be
harvested because of their specific
growth cycle rather than due to
meteorological or climatic conditions.
Another commenter noted that
Webster’s dictionary defines a ‘‘season’’
as ‘‘a period of the year characterized by
or associated with a particular activity
or phenomenon.’’ Two commenters
noted that fern harvesting in Volusia
County, Florida is an example of a
seasonal activity that is an established
annual pattern or event that occurs
between November and June not
because of weather conditions but
because holidays occurring during that
time create a higher demand for ferns.
One commenter recommended that
the Secretary either not define the term
or conduct a study of the range of
seasonal employment so as to develop a
better definition. Other commenters
suggested amending the definition to
include other reasons for seasonal
farmwork such as growth cycles.
Another commenter suggested changing
the word ‘‘meteorological’’ to
‘‘weather.’’
Discussion: While disagreeing with
some of the commenters examples,
which the Secretary believes are
‘‘temporary’’ rather than ‘‘seasonal’’
employment, the Secretary agrees with
the commenters that the language of the
proposed definition may have been too
limited. The Secretary has revised the
definition to reflect the commenters’
underlying concerns, and a definition of

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seasonal employment used by the
Department of Labor [see 29 CFR
Section 500.20(s)(1)], so as to better
describe what constitutes seasonal
employment.
Changes: The definition of seasonal
employment has been changed to state
that seasonal employment is
employment that occurs only during a
certain period of the year because of the
cycles of nature and that, by its nature,
may not be continuous or carried on
throughout the year.
Section 200.81(k) Temporary
employment.
Comments: Many commenters
expressed concern about the provision
in § 200.81(k) that an SEA may only
deem specific types of employment to
be temporary if it (1) documents through
an annual survey that, given the nature
of the work, virtually no workers who
perform this work remain employed
more than 12 months even if the work
is available on a year-round basis, and
(2) conducts this survey separately for
each employer and job site. Commenters
stated that conducting the proposed
annual survey at each job site would be
extremely costly and labor-intensive,
particularly on dairy farms, because of
the large number of sites at which States
would be required to conduct the
survey. Some commenters suggested
that there would be substantial
administrative costs and staff time
associated with conducting the annual
surveys and that, because the proposed
regulations would not have provided for
additional funds to pay for costs of
conducting the surveys, the proposal
would adversely affect the level of MEP
services States could provide to needy
children.
Several other commenters observed
that the proposed survey requirement
represented an extreme and
unwarranted change to existing
Department practice, would be highly
burdensome, and would eliminate many
families from being identified or served.
Still other commenters stated that the
proposed requirement to conduct
annual surveys (by individual job site)
would be impossible to implement
because employees and employers are
often unwilling to give an SEA complete
and valid data about turnover rates. One
commenter questioned the practicality
of expecting SEAs to conduct valid
surveys of each employer and site. Two
commenters noted that at every
livestock processing plant in the Nation
there are at least several workers who
remain employed year round, and the
commenter expressed concern that no
child of a worker in these plants would
be eligible to receive MEP services
under the proposed regulation.

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Discussion: While section 1309(2) of
the ESEA requires that a migratory
worker move in order to obtain
temporary or seasonal employment in
agricultural or fishing work, the law
does not define ‘‘temporary’’
employment. As explained more fully in
response to other comments, the
temporary nature of employment that is
sought or obtained is generally
determined either by the worker or the
employer. However, the Department
also recognizes that there are other jobs,
such as may exist in processing plants
or dairy farms, in which the
employment is constant and year-round
but for various reasons workers
typically do not stay long at these jobs.
In consideration of employment in
these kinds of jobs, the Department
developed another way SEAs may
determine that the employment an
individual seeks or obtains is
‘‘temporary’’ for purposes of the MEP. In
particular, the Department’s most recent
non-regulatory guidance permits SEAs,
for jobs that are constant and yearround, to determine the work to be
temporary on the basis of an ‘‘industrial
survey’’ that establishes, from personnel
data supplied by employers, a high
turnover rate—at levels specified by the
Department—for each job category.
The Secretary’s proposal in the NPRM
responded to widespread dissatisfaction
of local, State, and Federal program
officials with this guidance. Much of
this dissatisfaction has been due to the
great difficulties, if not impossibility, of
State or local MEP staff obtaining
turnover data from employers, and the
lack of completeness and accuracy of
the data that employers did provide.
The proposed regulation would not
have required employers to provide
such data. Indeed, the preamble to the
NPRM [72 FR 25232] clarified the
Secretary’s intent that the necessary
attrition data could be easily obtained
from workers when SEA or local MEP
staff conduct their annual updates to
confirm eligibility and continued
residency of eligible children identified
previously—a task they regularly
perform in order to compile accurate
SEA and local program child counts and
to determine if new qualifying moves
have been made. Thus, the Secretary
believes that the regulations as proposed
addressed those pre-existing concerns
and similar concerns raised by the
commenters.
Moreover, the Secretary does not
believe that there will be substantial
additional costs and data collection
burden associated with the process the
regulation permits for validating
whether certain types of year-round
work can be considered temporary

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employment. Notwithstanding our use
of the word survey in the proposed
definition of temporary employment, we
did not intend the validation process to
be a complex and expensive effort that
would require SEAs to gather a large
amount of detailed personnel data
annually from employers or workers.
Rather, as imperfectly explained in the
NPRM [72 FR 25232], we envisioned
that this validation process would
involve asking only those workers
whose children were determined
eligible based on the seemingly yearround jobs that the State had previously
designated as temporary (or the children
themselves if they are the workers) the
following simple question: has the
worker remained employed by the same
employer for more than one year.
After further consideration of the
comments, however, the Secretary
believes that this definition can be
revised to provide greater flexibility for
States and still ensure that program
objectives related to ensuring that
workers are legitimately considered to
have moved ‘‘in order to obtain’’ a
‘‘temporary’’ job are met. Accordingly,
we have revised the definition to
provide that instead of having to
conduct annual surveys to document
the temporary nature of work that is
seemingly constant and year-round, an
SEA now need only document, within
18 months after the effective date of this
regulation and at least once every three
years thereafter, that, given the nature of
the work, of those workers whose
children were previously determined to
be eligible based on the State’s prior
determination of the temporary nature
of such employment (or the children
themselves if they are the workers),
virtually no workers remained
employed by the same employer more
than 12 months.
We will provide further details about
recommended procedures—such as
combining the process to validate that
particular types of employment are
temporary with existing eligibility
checks and updates, and whether all or
a sample of employers or job sites
should be examined—in non-regulatory
guidance.
Change: The Secretary has revised the
definition of temporary employment to
clarify how an SEA may determine
specific types of constant and yearround employment to be temporary. The
SEA may do so if it documents, within
18 months after the effective date of this
regulation and at least once every three
years thereafter, that, given the nature of
the work, of those workers whose
children were previously determined to
be eligible based on the State’s prior
determination of the temporary nature

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of such employment (or the children
themselves if they are the workers),
virtually no workers remained
employed by the same employer more
than 12 months.
Comments: With respect to States’
determination of whether certain yearround employment would be
considered temporary, we asked in the
NPRM for input on whether the terms
‘‘a few months’’ and ‘‘virtually no
workers * * * will remain employed
more than 12 months’’ should continue
to be used for the final regulation, or
whether and what firmer time limits,
numbers, or percentages might be used
instead. Several commenters responded
to this question by recommending that
these terms be removed because, as
written, they were too vague, would
create confusion, could provide
opportunities for abuse, would be
expensive to implement, and would
exclude a large percentage of children
currently considered eligible for the
MEP by their States.
Several commenters asked the
Department to clarify the meaning of the
term ‘‘virtually no workers.’’ One
commenter suggested that the term is
not quantifiable, and another indicated
that a given percentage of employees
leaving over the course of a year may be
more or less significant given the overall
size of the processing plant. Still
another commenter expressed the
opinion that, even though the
Department indicated in the preamble to
the NPRM that the term was used to
avoid setting arbitrary limits, the term is
tantamount to establishing an arbitrary
100 percent rate.
Several commenters stated that it
would be nearly impossible to classify
food processing or dairy-farm work as
temporary under the proposed
definition because most processing
plants and dairy farms employ at least
a few workers for longer than 12
months. One commenter noted that the
Department’s own study of processing 2
indicates that poultry processing has
turnover rates from 50 percent to over
100 percent.
Some commenters recommended
either eliminating the proposed
definition entirely and continuing to
rely on the procedures outlined in
current non-regulatory guidance, or
establishing the non-regulatory
guidance procedures by regulation. In
this regard, several commenters
recommended using the provisions of
the industrial survey process contained
in the current non-regulatory guidance,
2 RTI International: ‘‘Literature Review:
Agricultural and Fish Processing,’’ June, 2004.
[Prepared for the U.S. Department of Education].

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

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based on data that employers have
provided to the SEAs, are flawed. In this
regard, according to information the
Department received during a 2004
meeting with representatives from
various processing industries, it appears
that their job turnover rates usually only
take into account movement of workers
in or out of a particular job; they do not
usually account for situations in which
the particular worker continues to
remain employed by the employer at the
same work site in a succession of jobs
and, thus, is actually a permanent
employee. Under this methodology,
persons initially hired in jobs
considered temporary based on high
reported turnover rates as measured
based on this flawed job turnover rate
metric may in fact remain employed by
the same employer for years—a
situation indicative of permanent
(constant year-round), not temporary,
employment. Thus, continuing to rely
on job-specific turnover rates is
inappropriate. Given the flawed nature
of the job turnover rates, the Secretary
believes that examining whether
persons hired to perform such jobs that
the SEA believes, on some credible basis
(such as market research), to be
temporary employment continue to be
employed for more than a year would be
a better measure of whether it is
reasonable to continue to identify and
serve such workers’ families under the
program.
Also, the Secretary notes that
allowing the use of a turnover rate as
low as 50 or 75 percent to establish a
particular job as temporary employment
would extend program eligibility to a
substantial number of children (i.e., the
children of the 25 or 50 percent of
workers who remain employed yearround) who would not meet the
definition of migratory child and
therefore should not be considered
eligible for the MEP. The Secretary
therefore believes that the turnover rates
specified in the current non-regulatory
guidance are too low to establish the
temporary nature of the work for the
purpose of extending eligibility to the
children of all workers in these jobs.
Change: None.
Comments: In the preamble to the
NPRM [72 FR 25232], we also asked for
input as to whether there are additional
regulatory requirements that would
improve the proposed annual survey by
improving the quality and consistency
of the data or by providing more
effective methods to collect the data. In
response, two commenters
recommended that the definition of
temporary employment be qualified by
inserting the phrase ‘‘usually lasting no
longer than 12 months’’ which is

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consistent with the definition of
temporary employment in the current
non-regulatory guidance. Other
commenters proposed that the
definition of temporary employment
include jobs that last for more than 12
months if a State can demonstrate either
high turnover rates or a pattern of
temporary work at the work site or by
the worker. Two other commenters
suggested that the time period for a job
to be considered temporary be extended
to 18 months. These commenters noted
that, in some industries such as dairy,
temporary employment can last for
longer than 12 months and that the
Department’s proposal, consequently,
would substantially reduce the number
of eligible migrant children in certain
geographic areas.
Discussion: Given that eligibility for
the MEP depends on a worker’s move to
a new location in order to seek or obtain
temporary or seasonal employment in
agricultural or fishing work, the
Secretary believes that the time period
in which individuals work in these jobs
should be brief and not reflect
employment that is constant and yearround. While reflecting an approach
that is more precise and less flexible
than is contained in the non-regulatory
guidance, the Secretary believes that
someone who works for 12 months has
year-round employment, and as such,
12 months represents the outside limit
for distinguishing temporary
employment from non-temporary
employment. The Secretary believes this
same 12-month limit should be applied
to the validation process for
determining whether certain types of
employment available year-round can
reasonably be deemed temporary. The
Secretary notes that this requirement on
the length of temporary work is
consistent with the Department of
Labor’s definitions of temporary work in
29 CFR 500.20 and 20 CFR 655.100 for
its migrant and seasonal farmworker
programs.
Given that the Secretary expects
temporary employment to usually last
briefly—for a few months—and that
temporary employment lasting as long
as 12 months is expected to be a rarity,
the Secretary agrees to add the phrase
‘‘but no longer than 12 months’’ to the
definition. However, as explained
above, the Secretary cannot agree that
employment that lasts for more than 12
months—e.g., for 18 months—should be
considered temporary, and so also
cannot agree that the period should be
extended even if an SEA can
demonstrate for this longer period either
high turnover rates or a pattern of
temporary work at the work site or by
the worker. Of course, if a worker

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expresses an intent to have moved in
order to work for a period of a few
months (not greater than one year), the
SEA could find the worker to have
moved in order to obtain temporary
work on the basis of the worker’s
purpose in making the move rather than
on the basis of documenting attrition in
such employment.
We turn finally to comments
expressing concern about the impact an
absolute 12-month rule would have on
children of workers in industries like
the dairy industry, where workers are
reported to stay in jobs somewhat longer
than 12 months. While the commenters
expressed concern about the impact of
a definition of temporary work that is
limited to 12 months, they offer no
specific data to corroborate their
statements. The Secretary believes that
establishing a 12-month time period is
not only reasonable, but is concerned
that, absent establishment of this time
period, SEAs will continue to extend
MEP eligibility to individuals who have
moved to a new location with at best
only a marginal purpose of obtaining
temporary or seasonal employment.
Given this concern about program
integrity, the Secretary declines to
accept the recommendation that the 12month period be extended to 15 or 18
months.
Change: We are modifying the
definition of temporary employment to
clarify that such employment is for a
limited period, usually lasting only a
few months, and cannot last longer than
12 months.
Comment: One commenter expressed
concern about how the proposed
validation process could be
implemented in that, given the
retrospective nature of the proposed
annual survey, an SEA would need to
wait a year to determine if a job could
be considered temporary and, by then,
the family will have moved away. The
commenter suggested that the process,
as proposed, was therefore unworkable.
Discussion: The Secretary recognizes
the commenter’s concern; however the
final regulation will require
documenting the attrition only of those
workers whose children were
determined eligible (or the children
themselves if they are workers) based on
the workers’ employment in those yearround jobs that the SEA, consistent with
these regulations, had previously
designated as temporary on some
reasonable basis. If the SEA tries to
question these workers 18 months later,
the Secretary would agree the SEA may
infer that those workers who have
moved away and cannot be located are
no longer employed at the same plant.
These workers, then, would be deemed

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to be part of the plant’s worker attrition
for that year and, so, would help
support a determination that
employment in that plant was
temporary.
Change: None.
Comments: Several commenters
recommended that States not be
required to conduct annual surveys and
should instead be allowed to establish
their own methodology and criteria to
document the temporary nature of
employment. One commenter noted that
States are in a better position than the
Federal government to gauge local
industry and substantiate whether
employment is temporary. One of the
commenters suggested that one way that
States should be allowed to certify yearround work as temporary would be
through providing additional
information on a supplemental form.
Another suggested that we require
States to conduct surveys to gather
turnover rates every three years, as
currently recommended in nonregulatory guidance, or permit recruiters
to find work to be temporary based on
conversations with other workers who
confirm a high turnover rate. The
commenter believed that these would be
more realistic options than requiring the
retrospective annual survey proposed in
the NPRM.
Discussion: As stated previously, the
Secretary strongly believes that whether
they are implemented once every three
years or annually, the procedures for
calculating turnover rates as described
in the Department’s current nonregulatory guidance for the MEP are
unacceptably flawed. Therefore, the
Secretary declines to make the specific
change suggested by the commenter.
However, the Secretary generally
agrees that the final regulations can
provide more flexibility regarding how
an SEA may determine and validate the
temporary nature of agricultural or
fishing work. In particular, we are
removing from the proposed regulation
references to various examples of types
of temporary employment and the
suggestions that these are the only kinds
of employment that can be considered
temporary on the basis of a survey.
Instead, the final regulations focus on
the use of credible sources of
information, including worker and
employer affirmations as well as other
reasonable determinations by the SEA.
They also eliminate the references to an
annual survey of employment that
might be deemed temporary,
notwithstanding that it appears to be
constant and year-round, to be
conducted separately for each employer
and job site. Instead, these final
regulations require SEAs to document,

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within 18 months of the effective date
of these regulations and at least once
every three years thereafter, that such
employment can continue to be deemed
temporary because virtually no workers
whose children were determined
eligible on the basis of such work
deemed temporary (or the children
themselves if they are such workers)
remained employed by the same
employer for over 12 months.
Change: The Secretary has revised
and simplified the definition of
temporary employment by clarifying
that: (1) such work is conducted for a
limited time frame—usually only a few
months but no longer than 12 months—
as stated by the employer or the worker,
or as otherwise determined by the SEA
on some reasonable basis; and (2) any
work that is constant and year-round
can only be considered temporary if the
SEA, within 18 months after the
effective date of this regulation and at
least once every three years thereafter,
documents that, given the nature of the
work, of those workers whose children
were previously determined to be
eligible based on the State’s prior
determination of the temporary nature
of such employment (or the children
themselves if they are the workers),
virtually no workers remained
employed by the same employer more
than 12 months.
Comments: Three commenters
requested clarification about the type of
documentation a State would need to
provide and the type of tests that a State
would need to conduct to classify yearround employment as temporary.
Commenters requested that the final
regulations specify the content of the
survey, the type of survey required, and
the dates when surveys would be
conducted.
Discussion: The Secretary appreciates
the commenters’ detailed and
constructive suggestions but believes
that, given the greater flexibility now
afforded by the final regulations, it
would be better to address the
commenters’ concerns in non-regulatory
guidance to be issued after the final
regulations are issued.
Change: None.
Comments: Two commenters
suggested that the States’ recent
voluntary changes in quality control
processes including re-interviewing, as
well as such research as a Departmental
study of the poultry processing
industry,3 should be sufficient to
demonstrate to the Department that
processing is temporary employment.
Discussion: The Secretary believes
that neither the State’s recent quality

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International, op. cit.

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control improvements nor the research
and information the Department has
collected on the processing industries
provide an adequate basis for the
Department to conclude that the work
that occurs at each processing plant
throughout the Nation is temporary. In
fact, based on discussions with
researchers and meat-processing
industry representatives, it is the
Department’s understanding that the
degree to which a particular work
activity in agricultural or fish processing
is temporary or permanent varies greatly
from plant to plant because of
differences in how each site carries out
the work activity (e.g., with a greater or
lesser degree of mechanization) and the
particular working conditions provided
in each plant (e.g., salary, benefits,
opportunities for advancement).
Accordingly, the Secretary will require
SEAs to use the validation process
described in the final regulations.
Change: None.
Section 200.83 Responsibilities of
SEAs to implement projects through a
comprehensive needs assessment and a
comprehensive State plan for service
delivery.
Comments: Several commenters
addressed our proposal to require that
an SEA include measurable program
outcomes tied to the State’s performance
targets in its MEP Comprehensive Needs
Assessment and Service Delivery Plan.
One commenter stated that, while the
proposed change seemed to assume that
MEP services do not have measurable
program outcomes, the proposed
language was redundant with statutory
requirements given that all States are
required to include migratory children
in the State accountability system.
Three of the commenters stated that
they recognize that there should be
measurable program outcomes for MEP
services. However, they also noted that
the supplemental nature of the MEP—
the fact that it often offers services for
a relatively short period of time (e.g., in
a summer program), at a limited level of
engagement (e.g., in a 50-minute
tutoring session three times a week
during the regular school day), and
through support services that are
educationally related but are not
themselves necessarily instructional—
requires that any measurable program
outcomes and performance targets for
the MEP be realistic, and should not
require precise quantification of results.
These commenters were concerned that
the proposed regulatory provision was
overly inclusive and believed the
Department should not overreach in its
expectation that grantees establish
quantifiable program goals, outcomes
and targets.

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Discussion: The Secretary recognizes
the supplemental nature of the MEP. As
noted in the preamble to the NPRM [72
FR 25233], the proposed change to
§ 200.83 simply conforms the regulatory
language with the language in section
1306(a)(1)(D) of the ESEA, which
requires that an SEA’s comprehensive
plan include both the specific
performance targets it has established
for all children (including migratory
children) and its measurable program
outcomes relative to those targets for the
MEP. The change eliminates any
ambiguity about whether a State must
address measurable program outcomes
in the MEP comprehensive plan that
may have resulted from the inadvertent
omission of the requirement in the prior
regulations.
Changes: None.
Section 200.89(a) Allocation of
funds under the MEP for fiscal year (FY)
2006 and subsequent years.
Section 200.89(a)(1). Several
commenters addressed our proposal in
this section under which the Secretary
would adjust, for purposes of making
FY 2006 and subsequent year MEP
awards, each SEA’s FY 2002 base-year
allocation by applying a defect rate
established through a State reinterviewing process to the State’s
2000–2001 base-year child counts.
Comments: Four commenters
questioned whether it was appropriate
for the Department to change, through
regulations, the statutory procedure for
calculating the FY 2006 allocations
when several States have not conducted
re-interviewing or submitted defect rates
to the Secretary.
Discussion: The Secretary appreciates
the commenters’ concern. However, this
concern is largely addressed by the
requirement in § 200.89(b)(1), which
requires those few States that have not
carried out a voluntary re-interviewing
process and submitted a defect rate to
the Secretary to do so as a condition for
their continued receipt of MEP funds.
We also note that currently only three
States have not submitted defect rates,
and one of these States, Rhode Island,
has indicated it no longer wishes to
operate an MEP because of its small
number of migratory children.
Changes: None.
Comments: Two commenters
expressed concern about using the
State-reported defect rates established
through the voluntary re-interviewing
process to adjust the 2000–2001 baseyear child counts because a standard
process was not employed by all States.
Both commenters were concerned that
not all States used independent reinterviewers. One of these commenters
recommended that the Secretary require

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that every State use an independent reinterviewer to establish the State’s
defect rate. In this regard, the
commenter noted that the Department
was using an outside contractor to
review the processes States used to
develop their defect rates, and
expressed the opinion that this use of a
contractor reflected dissatisfaction by
the Department with the defect rates as
generated by disparate procedures. In
the commenter’s view, using the
existing defect rates, which States
developed using imperfect and
disparate procedures, to adjust funding
would be inappropriate.
Discussion: As noted in the NPRM [72
FR 25234], the Secretary recognizes that
the State defect rates the Secretary
ultimately accepts will not perfectly
correct the 2000–2001 migrant child
counts. However, the Secretary firmly
believes that their use will result in the
distribution of FY 2006 and subsequentyear MEP funds in a way that better
reflects the intent of the statutory
allocation formula than would
continued use of the original 2000–2001
base-year counts.
As the commenter noted, the
Secretary has used an outside contractor
to review the SEA-submitted defect
rates and the SEAs’ associated reinterviewing and calculation
procedures. However, this was done in
order to obtain independent expert
opinion as to whether each SEA’s
submitted defect rate was based upon
adequate procedures and sufficient
technical rigor.
While it is true that not all SEAs
submitting defect rates used
independent re-interviewers, the
Secretary does not believe that the
decision not to do so should necessarily
invalidate the defect rates they reported.
Due to the voluntary nature of the reinterviewing initiative, the Secretary
does not believe it is reasonable—or
necessary—to require retrospective reinterviewing by all SEAs that did not
use independent re-interviewers
provided the Secretary is satisfied that
the process an SEA used met reasonable
standards for technical rigor and gives
confidence that the reported defect rate
is itself reasonable.
However, under paragraph (b)(1) of
this section, the Department will require
any State with a defect rate the
Secretary determines to be
unacceptable, or that used procedures
the Secretary determines to be
unacceptable, to conduct another
statewide retrospective re-interviewing
process. As the regulations are intended
to ensure that these SEAs do this work
in ways that are statistically and
methodologically sound, this process

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will need to include, as a required
element, the use of independent reinterviewers.
Changes: None.
Comments: Two commenters
questioned the appropriateness of
continuing to base FY 2006 and
subsequent year allocations on the
2000–2001 child counts. These
commenters expressed concern that
doing so would not appropriately direct
MEP funding to States that have
experienced substantial increases in
their migratory child populations over
the intervening years. The commenters
noted that the estimated ten percent
national average defect rate clearly
suggests that non-eligible children are
being served in many States at the
expense of eligible children and that the
use of the current formula does not
allow the funds to flow appropriately to
eligible children in the commenters’
States. The commenters proposed that
the provisions of the statute requiring
allocations after FY 2002 to continue to
be based on the 2000–2001 child counts
be amended to provide that funds
‘‘follow the child’’ based on use of
updated yearly counts of migratory
children.
Discussion: The Secretary
understands that the continued use of
base-year allocation amounts derived
from the States’ 2000–2001 migrant
child counts does not reflect the current
distribution of migratory children in the
States. However, unless the Secretary
knows that a State would be receiving
more MEP funds than it needs (see
section 1303(c)(2)(A) of the ESEA),
section 1303(a)(2) of the ESEA requires
the continued and exclusive use of the
base-year counts for any fiscal year in
which Congress has appropriated MEP
funds in an amount less than or equal
to the amount it appropriated for FY
2002. As the commenters note,
eliminating the use of the base-year
counts requires a statutory change. In
this regard, the Department has
requested that Congress, in the
upcoming ESEA reauthorization,
eliminate the requirement to make the
MEP allocations using base-year child
counts.
Changes: None.
Comment: One commenter
recommended revising the regulations
to permit, as was permitted under the
ESEA as reauthorized in 1988 (Pub. L.
100–297), a State to have up to a fivepercent error rate in its counts of
eligible migratory children before the
Department could impose any type of
allocation adjustment. The commenter
stated that a zero-percent error rate is
unrealistic and that every industry has
some non-zero error rate.

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Discussion: While section 1201(b)(1)
of the ESEA as reauthorized by Public
Law 100–297 (the Hawkins Stafford
School Improvement Amendments of
1988) contained a provision for a fivepercent error rate in State eligibility
determinations, this provision was
removed when Title I, Part C of the
ESEA was subsequently reauthorized by
Public Law 103–382 (the Improving
America’s Schools Act). The provision
also is not part of the current ESEA, and
the Department does not have authority
to adopt it by regulation. Such a
regulation would also conflict with the
clear intent of the statute that only
children who meet the statutory
definition of a migratory child may be
identified and served with the limited
funds appropriated for the MEP.
Changes: None.
Comments: While acknowledging that
in some situations States made errors,
both intentional and negligent, in
determining the eligibility of students
for the MEP, three commenters
questioned whether the Department
should be using the term ‘‘defect rate’’
to describe the findings of a State’s reinterview process. These commenters
suggested that the term ‘‘disparity rate’’
would be more appropriate because the
rates do not in all cases demonstrate
clear errors in eligibility but may simply
represent a disparity between written
records of eligibility determinations
made several years ago and more recent
attempts to verify the information by
new interviews. The commenters noted
several possible procedural and cultural
reasons for the disparities, including the
considerable time lag between the initial
eligibility determinations and the reinterviews, a lack of adequate
monitoring, and a lack of clarity in
certain eligibility criteria provided by
the Department.
Discussion: The Secretary recognizes
and appreciates the concerns raised by
commenters but does not believe that
the suggested change should be made.
In the various announcements, guidance
documents, and oral presentations the
Department has made and provided to
SEA officials on the re-interview
initiative, the Department asked each
State to determine, on the basis of
reasonable sampling and re-interview
procedures, its ‘‘defect rate’’, i.e., the
percentage of children in a State’s reinterview sample that the SEA
determined to be ineligible under its reinterview process. While acknowledging
that an SEA’s efforts might be subject to
subsequent audit, the Department
specifically left to each SEA the
decision to determine when a disparity
in the information received should be
reflected in its State defect rate. The

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Secretary is confident that the States
understood the meaning of ‘‘defect rate’’
when they undertook their efforts and
that the phrase ‘‘defect rate’’, as used in
the NPRM and these regulations, is
appropriate.
Changes: None.
Section 200.89(a)(2). Four individuals
or organizations submitted comments
on § 200.89(a)(2), which would require
SEAs to use the results of the
retrospective re-interviewing to conduct
a thorough re-documentation of the
eligibility of all children for the MEP
(and the removal of all ineligible
children) included in the 2006–2007
MEP child counts.
Comment: One commenter requested
clarification of the term, ‘‘thorough redocumentation.’’ The commenter stated
his belief that given the cost of reinterviewing a sample of the State’s
migrant children, re-documenting the
eligibility of all children in the State’s
migrant child count would be very
expensive.
Discussion: As discussed in the
preamble to the NPRM [72 FR 25234],
the Secretary intended the proposed
requirement to conduct ‘‘a thorough redocumentation’’ to mean that, after
completing its retrospective reinterviewing, an SEA would examine its
rolls of all currently identified migratory
children and remove from the rolls all
children it judges to be ineligible based
on the types of problems identified in
its retrospective re-interviewing as
causing defective eligibility
determinations. The Secretary expects
that an SEA will be able to undertake
this re-documentation effort, at little
additional cost, when it carries out its
annual activities to examine whether
children previously identified as
eligible in a prior performance year (and
who would retain eligibility based on a
36-month eligibility period following a
migratory move) still reside in the State
and so are still eligible to be counted
and served under the program. The
Secretary has revised the language of
this requirement in the final regulation
in order to better explain the process
required.
Changes: The Secretary has revised
§ 200.89(a)(2) to clarify that in carrying
out the re-documentation, an SEA must
examine its rolls of all currently
identified migratory children and
remove from the rolls all children it
judges to be ineligible based on the
types of problems identified in its
statewide retrospective re-interviewing
as causing defective eligibility
determinations.
Comment: Another commenter stated
that the requirements in proposed
§ 200.89(a)(2) are unnecessary, and that

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they should not apply to those States
with a declining population of
migratory children that have proactively
implemented procedures to improve
quality control.
Discussion: The Secretary disagrees
with the commenter. In order to
demonstrate the integrity of the program
statewide and nationally, it is necessary
for all SEAs to carry out the
requirements of this section to ensure
the accuracy of the State counts of
migrant children and the correctness of
the State eligibility determination of
each child. The fact that an SEA reports
a non-zero percent as its defect rate
based on a random sample of children
included in its retrospective reinterviewing implies statistically that
the overall population of identified
migratory children in the State will
contain approximately this same
percentage of ineligible children. An
SEA, therefore, needs to generalize from
its defect rate to estimate the percentage
(and actual number) of ineligible
children in its statewide population of
migratory children and, then, based on
application of the re-interview findings
regarding the types of problems that
caused the defect rate, search for, locate,
identify, and stop serving (and remove
from the rolls of eligible migratory
children) all children found to be
ineligible in the overall statewide
population of identified migratory
children. For example, finding 20
ineligible children out of a
representative sample of 400 (i.e., 5
percent defect rate) implies that, out of
an overall population of 5,000 identified
migratory children, approximately 250
children (5 percent of 5000 and not just
the 20 identified from the sample)
would also be ineligible across the State.
The SEA must, therefore, begin to
implement a re-documentation process
to identify and terminate services to all
of these ineligible children.
Changes: None.
Comment: Two commenters
questioned the value of the proposed redocumentation requirement, given the
burden and associated costs. One
commenter stated that the requirement
might be appropriate for certain highrisk grantees but not for all States
participating in the MEP. The other
commenter stated that the expense
would be unnecessary, given the current
level of attention that has already been
focused on MEP quality control issues
nationally. One commenter asserted that
the annualized costs associated with
data burden that we estimated for
conducting re-documentation were
misleading because we had assigned
costs to each State regardless of the size
of a State’s population of migratory

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children. Both commenters also
expressed concern that the costs of a
thorough re-documentation would be
very high for their respective States if
meeting the requirement involved the
same level of effort States expended
when they conducted their voluntary reinterviewing.
Discussion: The Secretary does not
agree that the costs of the redocumentation will be particularly high
because, as noted previously, the redocumentation can be conducted at the
same time that SEAs carry out their
usual processes for updating the
eligibility and continued residency of
migratory children identified as eligible
in a prior performance year. The
Secretary also strongly believes that this
re-documentation effort is an essential
step that must be implemented by all
SEAs in order to ensure the accuracy
and integrity of the States’ programs and
of the MEP nationally. Such redocumentation is necessary to ensure
that MEP funds are used only to provide
services to eligible migratory children.
This is the case since any MEP funds
used to serve ineligible children are not
available to serve those who are eligible.
Moreover, the provision of service to
ineligible children, when ultimately
discovered by Departmental monitoring
or audit, may require SEAs and LOAs to
return funds improperly expended,
reductions in future MEP allocations,
and the assessment of penalties and/or
damages.
Changes: None.
Comment: One commenter suggested
that the re-documentation requirement
is unnecessary because, according to the
commenter, it would be duplicative of
current regulatory requirements that
already require annual re-certification of
eligibility of each migratory family.
Discussion: While the ESEA generally
requires that SEAs submit accurate
counts of and serve only eligible
migratory children, current
Departmental regulations do not require,
explicitly or implicitly, that SEAs recertify the eligibility of migratory
children annually. If an SEA includes a
child in its State child counts based on
a prior year’s eligibility determination,
the SEA must only confirm that the
child has lived in the State during the
reporting period and that the child
made an eligible move not more than 36
months before reporting the child in the
State’s counts of migratory children. An
SEA may conduct an annual recertification as part of its Stateestablished program requirements, and,
in its MEP non-regulatory guidance, the
Department has recommended that
SEAs conduct such re-certifications as a
voluntary quality control measure.

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However, MEP regulations have never
required that States conduct recertifications.
Changes: None.
Section 200.89(b) Responsibilities of
SEAs for re-interviewing to ensure the
eligibility of children under the MEP.
Comment: One commenter objected to
the re-interviewing requirements
proposed in § 200.89(b), stating that, in
the commenter’s opinion, requiring any
further re-interviewing would constitute
a waste of program funds given the
amount of funds that have already been
expended on the voluntary retrospective
re-interviewing process. The commenter
recommended eliminating the reinterviewing requirements.
Discussion: The Secretary disagrees.
The voluntary retrospective reinterviewing process was valuable in
identifying serious deficiencies in
eligibility determinations in a number of
States, and it is necessary, from the
point of fairness, to require it in
§ 200.89(b)(1) of all SEAs that did not
participate voluntarily or did not
provide what the Secretary determines
to be an acceptable defect rate.
Similarly, it is necessary to require
prospective re-interviewing in
§ 200.89(b)(2) to ensure a complete
system of quality control. For reasons
expressed elsewhere in this notice, the
Secretary is satisfied that the costs
associated with re-interviewing are
reasonable and manageable.
Change: None.
Section 200.89(b)(1) Retrospective
Re-interviewing. In all, six individuals
or organizations submitted comments
on the requirements in § 200.89(b)(1), in
which the Department proposed to
establish certain minimum technical
requirements regarding sample
selection, re-interview procedures, and
reporting for retrospective reinterviewing.
Comments: Four commenters
supported the proposed requirement to
conduct retrospective re-interviewing.
One commenter stated that the proposal
was a good idea and would make every
State responsible for the re-interviewing
process and its results. Two commenters
indicated that the re-interviewing
requirement would not apply to their
State because the State had already
conducted re-interviewing under the
voluntary re-interview initiative.
Another commenter stated that she had
no comments concerning the
requirements unless the Department
does not accept the commenter’s State
defect rate.
Discussion: While the Secretary
appreciates these supportive comments,
they raise a concern that the language in
paragraph (b)(1) of the proposed

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44115

regulation was not sufficiently clear
about which SEAs would need to
conduct retrospective re-interviewing.
We note those requirements here and
have revised the language in the
regulations to clarify the requirements.
Under these regulations, retrospective
re-interviewing will be required by: (1)
Those few SEAs that do not implement
the process voluntarily prior to the
effective date of these final regulations;
(2) any SEA that submitted a defect rate
that the Secretary does not accept; and
(3) any SEA implementing it as a
corrective action of the Secretary based
on prospective re-interviewing results
[§ 200.89(b)(2)(vii)] or other quality
control checks [§ 200.89(d)(7)].
Currently, SEAs in only two States
with operating MEPs have not
conducted voluntary re-interviewing
and submitted a defect rate to the
Department. These two SEAs will be
required to conduct retrospective reinterviewing once these final
regulations have become effective. Of
the remaining SEAs, i.e., those that
conducted voluntary re-interviewing
and submitted their defect rates to the
Secretary, the Secretary has been able to
determine all but a small number to be
acceptable. After these regulations
become effective, the Secretary will
notify those few SEAs that submitted
unacceptable defect rates that, if the
matter of their defect rates is not
resolved, they, too, will need to conduct
retrospective re-interviewing.
Additionally, retrospective reinterviewing may be required of an SEA
in the future as a corrective action if
necessary under § 200.89(b)(2)(vii) or
§ 200.89(d)(7).
Change: The Secretary has revised
§ 200.89(b)(1)(i) to clarify that, in
addition to those SEAs that have not yet
conducted retrospective re-interviewing,
any SEA that did so but submitted a
defect rate that is not accepted by the
Secretary will also be subject to the
requirement to conduct retrospective reinterviewing. The revised regulation
also now clarifies that the Secretary may
require retrospective re-interviewing as
a corrective action in order to respond
to problems identified through the
prospective re-interviewing process
(§ 200.89(b)(2)(vii)) or through other
quality control checks, including audit
and monitoring findings of the Secretary
(§ 200.89(d)(7)).
Comments: One commenter expressed
concern about the sampling
requirements for retrospective reinterviewing. This commenter stated
that the proposed sample size for
retrospective re-interviewing would be
similar to the sample size for
prospective re-interviewing and that

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this would require each State to expend
an additional 8,700 person hours
annually.
Discussion: The commenter has
misunderstood the proposed sampling
requirements and the amount of effort
needed for both prospective and
retrospective re-interviewing. First, the
statement in the preamble to the NPRM
[72 FR 25235] that an estimated 8,700
hours would need to be expended for
prospective re-interviewing refers to the
estimated total hours to be expended
nationally across all States participating
in the MEP, not to the effort to be
expended by a single State. Second, the
sample size and the estimated data
burden for retrospective re-interviewing
are not the same as for prospective reinterviewing. Rather, both sample size
and data burden on staff and migratory
families are greater for retrospective reinterviewing than for prospective reinterviewing.
As noted more clearly in the OMB
information collection package [1810–
0662] and the section of the NPRM
entitled Paperwork Reduction Act of
1995 [72 FR 25238], we estimate that on
average only 152 hours of staff time (and
25 hours of migrant parents’ time across
an estimated statewide sample of 50
migratory parents) per State will be
needed to conduct prospective reinterviewing, while an estimated
average of 1,580 staff hours and 150
person hours (across an estimated
average statewide sample of 300 migrant
parents) per State will be needed to
conduct retrospective re-interviewing.
As we have noted, however, most SEAs
have already conducted their
retrospective re-interviewing process
and will not incur this burden. Only
those SEAs that have not conducted
retrospective re-interviewing prior to
the effective date of these final
regulations, those SEAs that have a
defect rate that the Secretary does not
accept, or those under corrective actions
that require retrospective reinterviewing will still have to meet the
retrospective re-interviewing
requirements established by these final
regulations.
Changes: None.
Comments: One commenter stated
that the costs associated with hiring
independent re-interviewers to conduct
retrospective re-interviewing would be
significant and would require States to
divert funds and services away from
migrant children. The commenter
expressed the opinion that imposing
these costs was inconsistent with the
Summary of Potential Costs and
Benefits in the NPRM, in which the
Department stated that the proposed
regulations would not add significantly

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to the costs of implementing the MEP.
The commenter recommended either
providing funds to States to hire
independent re-interviewers or
eliminating the requirement for
independent re-interviewers except in
cases where the Secretary determines a
significant error rate.
Discussion: Consistent with the need
for retrospective re-interviewing to
ensure the integrity of a State’s MEP, the
Secretary believes that the use of
independent re-interviewers is
necessary in conducting retrospective
re-interviewing. The Secretary
recognizes that hiring and training
interviewers independent of the initial
eligibility determinations will be
somewhat more expensive than using
existing program personnel (although
existing program personnel may still
need to receive training in the reinterviewing process, and SEA or LEA
staff already on-staff but paid from nonMEP funds (e.g., State/local audit staff,
monitoring staff from other Federal or
State programs) may also be considered
independent re-interviewers). However,
the Secretary believes that any extra
costs incurred through the use of
independent re-interviewers are an
allowable and necessary use of MEP
funds and justified by the need to
establish the quality and impartiality of
a State’s re-interviewing process. In any
case, the retrospective re-interviewing is
only to be conducted in situations
where there are significant questions
raised about the accuracy of a State’s
eligibility determinations as identified
either through its ongoing quality
control processes (including prospective
re-interviewing) or because the State did
not conduct a retrospective reinterviewing process that resulted in a
defect rate that the Secretary accepts.
Changes: None.
Comment: One commenter asked that
we clarify which year States must use
for the target child count required for
retrospective re-interviewing.
Discussion: The Secretary will
determine which year’s migrant child
count an SEA must examine in
retrospective re-interviewing based on
the reason the SEA is being required to
conduct such re-interviewing, i.e., if the
SEA did not conduct retrospective reinterviewing prior to the effective date
of this final regulation; if a previously
submitted defect rate was found to be
unacceptable based on the Department’s
review of the State’s re-interviewing
process; or if the Department requires it
as a corrective action.
Change: None.
Section 200.89(b)(2) Prospective Reinterviewing. In all, 15 individuals or
organizations submitted comments on

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proposed § 200.89(b)(2), which would
require annual prospective reinterviewing and establish certain
minimum technical requirements
regarding sample selection, re-interview
procedures, reporting, and corrective
actions.
Comments: One commenter
supported our proposal to require
prospective re-interviewing because it
would ensure that all States actively
monitor their eligibility determinations.
Two other commenters indicated that
their States were already conducting
prospective re-interviewing on a sample
of children annually.
Discussion: The Secretary appreciates
the commenters’ expressions of support
for the proposal to require prospective
re-interviewing.
Changes: None.
Comments: Several commenters
expressed concern that the prospective
re-interviewing requirements would be
costly and burdensome for States to
implement. In some cases, the
commenters based their concerns on
their prior experiences with the
Department’s voluntary (retrospective)
re-interviewing initiative. In other cases,
commenters assumed that the 8,700
hours referred to in the preamble to the
NPRM represented the burden per State,
rather than nationally. Several
commenters also were concerned that
their States, especially States with small
MEP allocations or those with low MEP
base-allocation amounts that have
experienced influxes of migrant
children since FY 2002, would not have
sufficient funds to conduct extensive reinterviewing in order to verify eligibility
and still be able both to continue to
serve migrant children and identify and
recruit eligible children for MEP
services.
Several of the commenters expressed
concern about re-interviewing costs in
light of the statement in the preamble to
the NPRM [72 FR 25235] that States
would need to conduct prospective reinterviews of 100 migrant families
annually. These commenters stated that
it would be too burdensome and
expensive, and in some cases
impossible, for States with small MEP
allocations to conduct this number of reinterviews on an annual basis. Several
commenters asked that the prospective
re-interviewing requirement either be
eliminated or somehow modified to take
into account the differences in the
amounts of MEP funding that each State
MEP receives. Several commenters
suggested increasing each State’s MEP
allocation to cover the costs associated
with prospective re-interviewing. One
commenter recommended including a
specific line item for this task.

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Discussion: The Secretary does not
agree that the prospective reinterviewing process required in
§ 200.89(b)(2) will be overly
burdensome. As noted elsewhere in this
preamble, as well as in the preamble to
the NPRM [72 FR 25234], the Secretary
believes that prospective reinterviewing constitutes an essential
activity in an overall system of quality
control.
In reviewing these comments,
however, we believe there were some
misunderstandings regarding the
regulatory requirements and associated
burden costs of prospective reinterviewing.
• First, commenters appeared to
believe that prospective re-interviewing
will be as extensive and difficult as the
voluntary retrospective re-interviewing
that most SEAs carried out prior to
issuance of this regulation;
• Second, commenters appeared to
believe that the burden for prospective
re-interviewing will be an average of
approximately 8,700 hours per State,
rather than nationally; and
• Third, there was a
misunderstanding that each SEA would
be required to prospectively reinterview 100 families per year.
With regard to the first concern, the
Secretary recognizes that the voluntary
retrospective re-interviewing process
that most SEAs conducted was costly
and time-consuming. That was the case
because the retrospective reinterviewing process entailed: (1) Using
a statewide random sample and
considerable over-sampling to ensure
adequate replacement for those families
that could not be located, so that the
results could be generalized statewide;
and (2) conducting re-interviews after a
considerable amount of time had passed
between the initial eligibility
determination and the re-interview.
Prospective re-interviewing, however,
will not pose the same difficulties. As
we stated in the preamble to the NPRM
[72 FR 25235], the sample used for
prospective re-interviewing (unlike the
sample used for retrospective reinterviewing) does not need to be large
enough to generalize to the statewide
population of migratory children.
Rather, it only needs to be of sufficient
size and scope to serve as an early
warning system for potential eligibility
problems. Additionally, SEAs can and
should be conducting their prospective
re-interviews relatively soon after the
initial eligibility determination is made.
With regard to the second concern,
the Secretary believes the
misunderstanding stems from a
statement in the preamble to the NPRM
[72 FR 25235]—that the prospective re-

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interview burden would be less than
8,700 hours annually—that was unclear.
The 8,700 hours estimated to be
required to conduct prospective reinterviewing represents the estimated
annual burden in total nationally, not
per State. As was noted more clearly in
the section of the NPRM entitled
Paperwork Reduction Act of 1995 [72
FR 25238] and in the OMB information
collection package [1810–0662], we
estimate that on average only 152 hours
of staff time (and 0.5 hours of time for
each of 50 migrant parents) per State per
year would be needed to conduct
prospective re-interviewing.
With regard to the third concern, the
Secretary regretfully notes that the
reference to prospective re-interviewing
of 100 families in the preamble was an
error. In fact, as included in the OMB
information collection package [1810–
0662] and identified in the section of
the preamble to the NPRM entitled
Paperwork Reduction Act of 1995 [72
FR 25238], the Department’s cost and
burden estimates for prospective reinterviewing are based on the
expectation that, on average, only 50
families would be prospectively reinterviewed per State per year.
Accordingly, the language in the
preamble to the NPRM should have
provided that States ‘‘on average’’
would prospectively re-interview ‘‘on
an annual basis * * * no more than 50
families.’’
Further, our use of the terms, ‘‘no
more than’’ and ‘‘on average’’, when
taken together, means that we recognize
that under some situations, and
especially in the case of States with
small numbers of migrant children and,
thus, small MEP allocations, an SEA
may be able to draw meaningful
inferences about the quality of
recruiters’ eligibility decisions from
prospective re-interviews with fewer
than 50 families per year and still satisfy
the regulatory requirement in
§ 200.89(b)(2)(ii) to annually sample a
‘‘sufficient number of eligibility
determinations’’ randomly on a
statewide basis or based on relevant
subgroups. Conversely, an SEA in a
State with a relatively large number of
migrant children and, thus, with a
relatively large MEP allocation may find
it desirable to re-interview more than 50
families in order to obtain meaningful
inferences about the quality of eligibility
decisions that its recruiters are making.
Issues of sample size will be more fully
addressed in non-regulatory guidance
on re-interviewing after the publication
of this final regulation.
With regard to the other concerns
regarding costs, we estimated in the
OMB information collection package

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[1810–0662], which the NPRM invited
the public to review and comment
upon, that the average cost per State of
the prospective re-interviewing (using
the correct average of 50 families per
State) will be about $2,300 annually.
Given this estimate, the Secretary does
not believe that any SEA will find its
costs of undertaking prospective reinterviewing to be unmanageable, and
so does not believe that this requirement
will result in any significant reduction
of direct services to migrant children.
SEAs, of course, may use their State
MEP allocations to pay for the cost of
prospective re-interviewing.
With regard to the recommendations
to increase or specifically reserve funds
to help States pay the cost of conducting
prospective re-interviewing, absent a
statutory change the Secretary cannot
increase a State’s MEP allocation or
specifically reserve funds to compensate
for the small amount of MEP funds that
each State participating in the MEP will
have to use to pay for prospective reinterviewing. Nor could the Secretary
increase each State’s allocation unless
the appropriation for the program
increases.
Changes: None.
Comment: Two commenters asked
whether the proposed regulations would
require that States conduct two,
overlapping prospective re-interviewing
processes—one activity to be conducted
by MEP staff every year and a second
activity to be conducted in a given year
along with the first activity, at least
every third year, by non-MEP reinterviewers.
Discussion: The regulations do not
require two separate and overlapping
procedures for conducting prospective
re-interviewing. Section 200.89(b)(2)
establishes one annual prospective reinterview process. In conducting the
annual prospective re-interview process,
the SEA must use independent reinterviewers, rather than MEP-funded
re-interviewers, to conduct that reinterviewing at least once every three
years. So, for example, if an SEA uses
MEP-funded re-interviewers to conduct
the annual prospective re-interviews in
years 1 and 2, it must use independent
re-interviewers to conduct that process
in year 3. In order to assist SEAs in
implementing these new prospective reinterviewing regulatory requirements,
we will be issuing non-regulatory
guidance regarding recommended reinterviewing processes following
issuance of these final regulations.
Changes: None.
Comment: In response to our request
in the NPRM for input on whether
prospective re-interviewing should
occur on a less frequent interval than

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annually, several commenters stated
that prospective re-interviewing should
be required less frequently—e.g., either
on a biennial basis or once every three
years. One commenter recommended
conducting re-interviewing
‘‘periodically.’’ Another commenter
suggested annual re-interviewing is not
necessary given the requirements in
§ 200.89(d), which establishes a number
of other quality control procedures.
Discussion: The Secretary appreciates
the commenters’ input. After due
consideration of the comments, we have
concluded that prospective reinterviewing may not occur less
frequently than annually. A requirement
that prospective re-interviewing be
conducted only periodically would not
be sufficiently precise. Requiring that
the process be conducted biennially or
even less frequently, rather than
annually, would not be justified in light
of the substantial benefit to program
integrity that will accrue from
conducting the process annually. In this
regard, we cannot overemphasize that
the national re-interviewing initiative
revealed significant problems with
eligibility decisions in many parts of the
nation. While we are confident that
SEAs have taken seriously their
responsibility to correct the underlying
problems that created this situation, the
Secretary believes that continued
vigilance is still needed.
Prospective re-interviewing is meant
to identify, based on a review of a small
sample of families with children found
eligible for the MEP, potential problems
with eligibility determinations early
on—before they become severe. Hence,
conducting prospective re-interviewing
less frequently than annually would
mean that SEAs would have less
frequent opportunities to find potential
eligibility determination problems,
increasing the risk that an eligibility
problem will fester or become more
widespread and more difficult for the
SEA to correct.
Changes: None.
Comment: Several commenters stated
that they believed § 200.89(b)(2) was
overly prescriptive. In particular, three
commenters suggested that face-to-face
re-interviews with migrant families are
not necessary and that telephone
interviews are sufficient. One of the
commenters suggested that the Secretary
modify the language of the regulation to
provide that the SEA determines what
constitutes a reasonable process for
conducting prospective re-interviewing.
Discussion: The Secretary does not
agree that the provisions in this section
are overly prescriptive. Rather, while
the provisions do establish certain
minimum requirements for prospective

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re-interviewing, they do so in such a
way as to give SEAs considerable
flexibility to establish a process that is
reasonable based on State-specific
circumstances, including the State’s
population of migrant children, and
specific migratory patterns. For
example, paragraph (b)(2)(ii), which
describes minimum sampling
requirements for prospective reinterviewing, gives SEAs flexibility as to
whether to test on a statewide basis or
within particular categories and risk
factors. It also suggests but does not
require absolute use of any or all of
several risk factors that might be used to
define the particular categories on
which re-interviewing might be focused
in a given year.
Despite the flexibility already offered
in the NPRM, the Secretary, in response
to the comments, has revised the
language in paragraph (b)(2)(iii) to
provide further flexibility by noting that
an alternative to face-to-face
interviewing may be used if face-to-face
interviewing is determined to be
impractical, and specifically noting
telephone interviewing is one allowable
alternative. This revision removes the
language that was contained in the
proposed regulations that required an
SEA to show that extraordinary
circumstances made it impractical to
conduct face-to-face interviewing.
Changes: The Secretary has revised
paragraph (b)(2)(iii) to provide that
SEAs must use a face-to-face approach
to conduct prospective re-interviews
unless circumstances make the face-toface re-interviews impractical and
necessitate the use of an alternative
method such as telephone re-interviews.
Comment: Several commenters
expressed concerns about the sample
size requirements for prospective reinterviewing. One commenter
recommended modifying the regulations
to require a smaller sample size for
prospective re-interviewing than the
average of 100 families that the NPRM
suggested. Three commenters expressed
concerned that the proposed regulatory
language regarding sample size was too
imprecise, and recommended that the
Secretary clearly define terms such as
‘‘random sampling’’ and ‘‘sufficient
sample,’’ and establish five percent or
another specific percentage of families
that each State must re-interview
prospectively. One commenter asked
that we clarify how the proposed
requirement to use ‘‘a statewide random
sample with a confidence interval of 5
percent’’ could be applied in a State
with a large migrant population if only
100 families a year are re-interviewed.
Discussion: With respect to the
comment regarding use of an average of

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100 families for the sample size for reinterviewing, we previously noted that
this reference was an error and that the
correct sample size would generally be
no more than 50 families, on average.
The Secretary does not agree that the
language in paragraph (b)(2)(ii) is
imprecise; we believe this language
provides an appropriate level of detail
for a regulation and permits a State
some flexibility depending on specific
circumstances. By the term ‘‘sufficient
sample,’’ we mean a smaller and less
precise sample than the one required for
retrospective re-interviewing. We mean
the term ‘‘random sample’’ to have the
meaning generally used in the field of
statistics. This said, we intend to
provide further guidance to States on
random sampling, sample sizes, and
other aspects of the re-interviewing
requirements in non-regulatory
guidance following the issuance of these
final regulations.
The requirement to use a statewide
random sample (at a 95 percent
confidence level with a confidence
interval of plus or minus five percent)
refers only to the requirements for
retrospective re-interviewing; in
contrast, for prospective re-interviewing
the SEA need only select a sample of
sufficient size and scope to enable the
process to serve as an adequate early
warning system about potential
eligibility problems.
Changes: None.
Comment: Three commenters
expressed concern about the costs and
effort needed if independent reinterviewers (i.e., non-MEP personnel)
are required for prospective reinterviewing.
Discussion: As we have discussed
previously, we do not believe that
implementing the prospective reinterviewing requirement, including the
provisions for use of independent reinterviewers, will create significant cost
or burden particularly when compared
to the benefit of using independent reinterviewers at least once every three
years to verify the eligibility
determinations for the sample selected.
Using independent re-interviewers
periodically allows States to avoid even
the appearance of a possible conflict of
interest in making decisions about
program eligibility determinations that
affect the size of grant and subgrant
amounts and, thus, contributes to
ensuring the ongoing integrity of the
MEP. Also, such independent reinterviewers may already be on staff at
an SEA or local site—e.g., monitoring or
audit staff for another program—and so
already have their salaries paid. They
would be considered ‘‘independent reinterviewers’’ so long as they do not

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operate or administer the MEP or are not
responsible for the initial eligibility
determinations they are reviewing.
Changes: None.
Comment: Three commenters objected
to our proposal to require States to use
re-interviewing as the sole or primary
method for ensuring the quality of
eligibility determinations. The
commenters recommended that States’
primary focus in ensuring quality
should be on providing training and
technical assistance to recruiters and
other relevant personnel. The
commenters indicated that a verification
process should be undertaken, but not
involve annual re-interviewing of
substantial numbers of families. These
commenters recommended that States
be required to develop and implement
a system of internal controls, such as
testing of recruiters, certification of
recruiters’ training, checking recruiters’
work and certificates of eligibility
closely, and related activities, in order
to ensure that procedures are
appropriate and followed
conscientiously. Additionally, the
commenters recommended that we
require States to more closely scrutinize
eligibility determinations in geographic
areas that experience a change in
demographics, in areas where there are
new recruiters, and in areas where there
have been findings of mistakes.
Three commenters stated that the
institutionalization of the prospective
re-interviewing process in regulations
and requiring the reporting of a new
‘‘defect rate’’ each year would be
unwarranted and detrimental. The
commenters argued that if a family is
deemed to be ineligible through the
State’s other existing quality control
processes, the family should simply be
removed from the list of children to be
served. The commenters suggested that,
if proper training and support are in
place and the Department conducts
appropriate site visit monitoring, there
should be no noticeable or worrisome
problems with the eligibility
determination process in the future. The
commenters recommended that the
States be required to adopt a
‘‘verification of eligibility plan’’ that
would be submitted to the Secretary for
approval.
Discussion: The Secretary is in
general agreement with the commenters.
The Secretary agrees that prospective reinterviewing is not and should not be
the sole or primary focus of a State’s
MEP quality control process, and that it
is important that SEAs examine
eligibility determinations based on
specific risk factors and other criteria.
The Secretary believes that this
approach is already reflected in the

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language in § 200.89(d), which outlines
the minimum components of a State’s
quality control system, and in
§ 200.89(b)(2)(ii), which indicates that
the sample selected for prospective reinterviewing may be based on categories
associated with particular risk factors.
Additionally, the Secretary agrees that
prospective re-interviewing should not
need to involve annual re-interviewing
of ‘‘substantial numbers’’ of families—
that 50 families per year would
generally be sufficient.
The Secretary does not agree that
prospective re-interviewing is
unnecessary or detrimental. As we
explained in the NPRM and in this
preamble, conducting prospective reinterviewing is essential, as one part of
an SEA’s overall quality control system,
for maintaining a high degree of
program integrity in the State and
nationally. Conducting prospective reinterviewing annually is necessary to
help promote SEA vigilance in checking
on the accuracy of State MEP eligibility
determinations shortly after they are
made, rather than allowing several years
to pass before eligibility problems can
be identified and corrected.
We note that the Department never
intended the prospective reinterviewing process to result in an
annual computation of a ‘‘defect rate.’’
Rather, we intended it to serve as a part
of an SEA’s early warning system for
eligibility problems. In this regard, if an
SEA uncovers eligibility problems
through prospective re-interviewing of
the sample of children previously found
eligible (or by the other review
processes described in paragraph (d)),
the SEA may have uncovered a problem
that is far more pervasive than the
ineligibility of the child or children on
which the prospective re-interviewing
focused. Simply removing these
children from the rolls of eligible
children as suggested by the
commenters, without investigating
whether the problem is broader, would
not constitute a sufficient or responsible
response to the findings. Instead,
depending on the nature of the
problems identified, the SEA must take
corrective action as called for in
paragraphs (b)(2)(vii) and (d)(7),
including where appropriate, more
extensive re-interviewing, to examine
the extent of the problem, and then
correct it.
Finally, the Secretary declines to
adopt the commenters’ recommendation
that we require States to develop and
submit a ‘‘verification of eligibility
plan,’’ in place of the prospective reinterviewing, since requiring the
development and submission of such a
plan would impose additional burden

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44119

on States while not providing useful
information other than a list of
promised activities similar to those we
have included in the regulations.
Changes: None.
Section 200.89(c) Responsibilities of
SEAs to document the eligibility of
migratory children.
Comments: Ten commenters
addressed the proposed provisions in
§ 200.89(c) establishing requirements for
States to follow when documenting the
eligibility of migrant children.
Two commenters supported our
proposal to require States to use a
national COE. However, one of these
commenters expressed concern
regarding when and how the national
COE would be developed and
implemented. One commenter noted
that the proposal for use of a national
COE should provide greater consistency
of information and training on
completing the documentation.
Several other commenters expressed
concerns about the proposal to require
use of a national COE. One commenter
noted that each State has different
patterns of work and mobility, and the
information necessary for a
determination of eligibility in one State
may not be necessary in another State.
Several commenters suggested that the
Secretary establish a basic COE of
required information that States could
add to, but not subtract from, to
document eligibility. Another
commenter suggested that, rather than
requiring the use of a single national
form, the Department specify certain
required data fields to be included on
each State’s individual form. Still
another commenter suggested that,
rather than require use of a national
COE, the Department should allow
States to submit their COEs to the
Department for approval. According to
the commenter, this approach would
provide States with flexibility in
developing the COE and still ensure that
each State’s COE contains the minimum
data necessary to document eligibility.
Several commenters stated that
additional cost and effort will be
required to change existing individual
State forms to a national form and to
align existing migratory student data
systems to the national COE. One
commenter noted that each subsequent
change to a national COE would
necessitate changes to the forms and
databases used by the States.
One commenter stated that we should
not require parental signatures on the
COE. The commenter noted that
inclusion of the parental signature
placed the burden for accuracy on the
migratory parent, rather than on the
program recruiter who completes the

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COE. The commenter also stated that
the COE would have to be translated
into Spanish, so that parents who only
speak Spanish could understand what
they are signing. The commenter also
noted that the Department should
consider how the requirement would be
applied if the migratory parents were
illiterate.
The commenter also suggested that
the Department clarify the legal
consequences if it finds that a COE
completed by a recruiter and signed by
the parent contains false information.
One commenter expressed concern
that the proposed COE does not include
information about how the data
collected will be shared. The
commenter believed that including such
a statement on the COE was necessary
under the Family Educational Rights
and Privacy Act (FERPA).
Finally, one commenter requested
that we clarify what would be
considered ‘‘additional documentation’’
under § 200.89(c)(2). The commenter
stated that without this clarification, the
commenter’s agency would be unable to
assess the impact of this aspect of the
proposed regulation. Another
commenter also stated that this term
could be interpreted differently from
State to State and, therefore, suggested
that it be clarified.
Discussion: As discussed in the
NPRM [72 FR 25235], the Secretary
believes that the establishment and use
of a national COE, as proposed in
§ 200.89(c)(1), are necessary to (1)
ensure consistency among the various
State programs in recording, retaining
and transferring MEP records; and (2)
help prevent incorrect eligibility
decisions that might occur because of a
State’s use of a COE the SEA had
produced that is not fully adequate. The
Secretary understands the desire
expressed by commenters for continued
use of their own States’ COEs or for an
alternative that would have the
Secretary establish only the minimum
content of their States’ COEs. However,
the Secretary believes that information
gathered in the course of State audits
and the national re-interview initiative
confirm that SEAs have used too many
different iterations of COEs that in one
way or another are problematic, and that
program integrity now demands use of
a common reporting form that all States
will use when making determinations
about migrant eligibility.
The Secretary recognizes that the use
of the national COE will require some
SEAs to change somewhat their existing
practices for documenting eligibility,
and that these changes will have
implications in the short run relative to
costs and staff time. However, given that

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all SEAs have for many years
voluntarily used some form of COE to
document eligibility that contains most
if not all the required data fields in the
proposed national COE, the Secretary
does not believe that costs and staff time
(all of which may be paid with MEP
funds) associated with substituting the
national COE for their State COEs and
revising their databases accordingly will
be so great as to outweigh the
advantages to the MEP as a whole of
using a standard national COE.
The Secretary thanks the commenters
for their input on the final format and
content of the COE, including the
requirement for the COE to be signed by
the parent. We are currently working
with OMB to finalize this data
collection and will be considering these
comments in making revisions to the
national COE. The public also will have
a further opportunity to comment on the
revised national COE and the associated
information collection package [1810–
0662] following the publication of these
final regulations, and we will consider
those comments as we finalize the data
collection. Once the complete
information collection package is
approved by OMB, we will provide
training and technical assistance on use
of the national COE, on issues that
include the need for the parental
signature and the rights and
responsibilities of COE signatories
under FERPA and the False Claims Act,
through non-regulatory guidance and
the Department’s Migrant Education
Resource Center (MERC).
We now address comments about the
meaning of the requirement in
§ 200.89(c)(2) that the SEA and its
operating agencies ‘‘develop and
maintain such additional
documentation as may be necessary to
confirm that each child found eligible
for this program meets all of the
eligibility definitions in § 200.81,’’ and
that different States may require
different information to be collected to
document eligibility. We proposed this
provision in recognition of the fact that,
depending on the circumstances of
individual children, a State may
determine that documentation of a
child’s eligibility for the MEP requires
more than the mere summary of a
parental interview as recorded on the
national COE. Such additional
documentation might include, for
example, information validating
temporary employment, explaining the
specific circumstances regarding
personal subsistence or economic
necessity, or re-interviewing results.
The additional documentation
requirement also permits inclusion of
any other items of information currently

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collected by States that are, according to
several commenters, not included on
the national COE.
Changes: None.
Section 200.89(d) Responsibilities of
an SEA to establish and implement a
system of quality controls for the proper
identification of eligible migratory
children.
Comments: Seven commenters
addressed one or more elements of the
proposed quality control requirements
in § 200.89(d).
Three commenters indicated that the
proposed quality control procedures in
§ 200.89(d) would adequately ensure
high quality in program eligibility
determinations, and that their
implementation, in concert with other
suggestions these commenters made
regarding the re-interviewing
requirements in § 200.89(b), would
reduce the need for substantial, annual
face-to-face re-interviewing and thereby
preserve program resources and reduce
alienation from the program. One
commenter recommended that the
Department reconsider regulating on
how SEAs implement quality control
procedures. This commenter suggested
that many States have addressed their
previously identified quality control
problems. The commenter also stated
that the proposed regulatory
requirements in this section would be
costly to implement and would require
States to reallocate program funds that
are currently spent on services to
children, without effectively reducing
defective eligibility determinations
beyond the current levels. This
commenter also proposed that States
that have effective quality control
systems in place and can document a
defect rate that is lower than the
national average should be exempt from
the proposed quality control
requirements in this section.
One commenter expressed concern
that the formal process for resolving
eligibility questions and distributing
written rulings required in paragraph
(d)(3) was overly prescriptive and
burdensome. Another commenter, while
expressing various concerns about the
quality of the identification and
recruitment practices in the
commenter’s State, suggested that the
Secretary establish, by regulation,
several additional quality control
requirements regarding the
qualifications, hourly pay, and training
of recruiters.
Discussion: As discussed in the
preamble to the NPRM (72 FR 25236),
the Secretary believes that, given that
defective eligibility determinations were
uncovered in virtually every State
during the voluntary re-interviewing

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

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paragraph may also result from
monitoring or audit findings of the
Secretary or the State.
Changes: We have modified the
language in paragraph (d)(7) to clarify
that Federal monitoring or audit
findings, as well as internal State audit
findings and recommendations, may
also trigger the SEA’s process for
implementing corrective actions.
Executive Order 12866
Under Executive Order 12866, the
Secretary must determine whether this
regulatory action is ‘‘significant’’ and
therefore subject to the requirements of
the Executive Order and subject to
review by OMB. Section 3(f) of
Executive Order 12866 defines a
‘‘significant regulatory action’’ as an
action likely to result in a rule that may
(1) have an annual effect on the
economy of $100 million or more, or
adversely affect a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local or tribal governments, or
communities in a material way (also
referred to as an ‘‘economically
significant’’ rule); (2) create serious
inconsistency or otherwise interfere
with an action taken or planned by
another agency; (3) materially alter the
budgetary impacts of entitlement grants,
user fees, or loan programs or the rights
and obligations of recipients thereof; or
(4) raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in the Executive order. The
Secretary has determined that this
regulatory action is significant under
section 3(f)(4) of the Executive order.
We have reviewed these final
regulations in accordance with
Executive Order 12866. Under the terms
of the order we have assessed the
potential costs and benefits of this
regulatory action.
The potential costs associated with
the final regulations are those resulting
from statutory requirements and those
we have determined to be necessary for
administering this program effectively
and efficiently.
In assessing the potential costs and
benefits—both quantitative and
qualitative—of these final regulations,
we have determined that the benefits of
the regulations justify the costs.
We have also determined that this
regulatory action does not unduly
interfere with State, local, and tribal
governments in the exercise of their
governmental functions.

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44121

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

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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 regulations will help maintain
public confidence in the program and
ensure its continued operational
integrity. Department analyses have
shown that, on average, close to 12
percent of the children identified by
SEAs as eligible for services for school
year 2003–04 did not meet the statutory
eligibility criteria. The regulations
provide a benefit by ensuring that
program funds are directed only to
eligible migratory children. Increased
accuracy will also ensure that program
funds are allocated in the proper
amounts and to the locations where
eligible children reside. If
implementation of the regulations
results in 12 percent of currently
participating children being determined
ineligible, then some $46 million
annually (12 percent of the
appropriation) would be redirected from
services to statutorily ineligible children
to serving children who meet the
statutory criteria. Because the statute is
intended to focus on eligible children
who have a genuine need for services
(as a result of having made a qualifying
move), there is a clear societal benefit to

than those who don’t earn a high school
diploma. These regulations benefit
society because they require safeguards
to ensure that the neediest migrant
children will be identified and receive
the services that will help them succeed
in school.
There is also a potential cost to
migratory children if these regulations
are not enacted. In the absence of
regulations, recipients have diluted the
quantity and quality of services
available to children who are
legitimately eligible for services under
the program by serving significant
numbers of children who are not
eligible. Since MEP services are only
available to eligible children for a short
period of time, preventing truly eligible
migratory children from receiving the
services they are entitled to may have an
adverse effect on their educational
attainment.
Paperwork Reduction Act of 1995
The regulations listed in the following
chart contain information collection
requirements. Under the Paperwork
Reduction Act of 1995 (44 U.S.C.
3507(d)), the Department of Education
has submitted a copy of these sections
to OMB for its review.

Regulatory section

Collection information

Collection

§ 200.83 ...............................

‘‘Migrant Education Program (MEP) Regulations and
Certificate of Eligibility (COE).’’ OMB No. 1810–0662.

§ 200.89(b)(1) .......................

Requires SEAs to add measurable program outcomes
into the comprehensive MEP State plan for service
delivery.
Requires SEAs to conduct retrospective re-interviewing

§ 200.89(b)(2) .......................

Requires SEAs to conduct prospective re-interviewing ..

§ 200.89(c) ...........................

Requires SEAs to document the eligibility of migratory
children.
Requires SEAs to establish a system of quality controls

§ 200.89(d) ...........................

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ensuring that program funds are used
only to serve eligible students.
More specifically, society as a whole
benefits when migratory children
receive educational services targeted to
their specific needs. As noted in
numerous studies since the nineteen
sixties,4 the migratory children who are
eligible to receive program benefits
constitute a particularly needy and
vulnerable school population. Migrant
families tend to live in poverty, speak
limited English, and lack access to
preventive medical care. Few children
from migrant families attend preschool,
and they are often enrolled in 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

‘‘Migrant Education Program (MEP) Regulations and
Certificate of Eligibility (COE).’’ OMB No. 1810–0662.
‘‘Migrant Education Program (MEP) Regulations and
Certificate of Eligibility (COE).’’ OMB No. 1810–0662.
‘‘Migrant Education Program (MEP) Regulations and
Certificate of Eligibility (COE).’’ OMB No. 1810–0662.
‘‘Migrant Education Program (MEP) Regulations and
Certificate of Eligibility (COE).’’ OMB No. 1810–0662.

Respondents to this collection consist
of SEAs and their LOA subgrantees
(usually, but not exclusively, LEAs) as
well as parents of migratory children.
The collection of information is
necessary to accurately identify and
serve eligible migratory children. The
proposed frequency of response is no
more than annually.
The estimated total annual reporting
and recordkeeping burden that will
result from the collection of information
is 510,456 hours. The estimated average
burden hours per response are
approximately 1,580 hours per each of
15 State respondents (i.e., SEA and

subgrantee staff), and 0.5 hours per each
of 4,500 migrant parent respondents to
address (on a one-time basis) the
requirements of § 200.89(b)(1) for
retrospective re-interviewing. We
estimate that it will require
approximately 152 hours per each of 49
State respondents and 0.5 hours per
each of 2,450 migrant parent
respondents to address (annually) the
requirements of § 200.89(b)(2) for
prospective re-interviewing. We
estimate that it will require
approximately 17,347 hours per each of
49 States and 1.5 hours per each of
300,000 parents (overall) to address the

requirements of § 200.89(c) for
documenting the eligibility of migratory
children. We estimate that it will
require approximately 1,220 hours per
each of 49 States to address (annually)
the requirements of § 200.89(d) to
establish and implement adequate
quality controls. We also estimate that
the data burden associated with the
proposed change in § 200.83 to add
measurable program outcomes into the
comprehensive MEP State plan for
service delivery will not total more than
one hour per SEA.
If you want to comment on the
information collection requirements,

4 See, for example, Invisible Children: A portrait
of migrant education in the United States, National
Commission on Migrant Education, U.S. Govt.

Printing Office, Sept. 23, 1992; and The same high
standards for migrant students: Holding Title I

schools accountable, United States Department of
Education, Washington DC, 2002.

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Federal Register / Vol. 73, No. 146 / Tuesday, July 29, 2008 / Rules and Regulations
please address your comments to the
Desk Officer for Education, Office of
Information and Regulatory Affairs,
OMB, and send via e-mail to
[email protected] or via fax
to (202) 395–6974. Commenters need
only submit comments via one
submission medium. You may also send
a copy of these comments to the
Department representative named in the
FOR FURTHER INFORMATION CONTACT

section of this preamble. We consider
your comments on these proposed
collections of information in—
• Deciding whether the proposed
collections are necessary for the proper
performance of our functions, including
whether the information will have
practical use;
• Evaluating the accuracy of our
estimate of the burden of the proposed
collections, including the validity of our
methodology and assumptions;
• Enhancing the quality, usefulness,
and clarity of the information we
collect; and
• Minimizing the burden on those
who must respond. This includes
exploring the use of appropriate
automated, electronic, mechanical, or
other technological collection
techniques or other forms of information
technology; e.g., permitting electronic
submission of responses.
OMB is required to make a decision
concerning the collections of
information contained in these
proposed regulations between 30 and 60
days after publication of this document
in the Federal Register. Therefore, to
ensure that OMB gives your comments
full consideration, it is important that
OMB receives the comments within 30
days of publication.
Intergovernmental Review
This program is subject to the
requirements of Executive Order 12372
and the regulations in 34 CFR part 79.
The objective of the Executive Order is
to foster an intergovernmental
partnership and a strengthened
federalism by relying on processes
developed by State and local
governments for coordination and
review of proposed Federal financial
assistance.
In accordance with the order, we
intend this document to provide early
notification of the Department’s specific
plans and actions for this program.
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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

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at the following site: http://www.ed.gov/
news/fedregister.
To use PDF you must have Adobe
Acrobat Reader, which is available free
at this site. If you have questions about
using PDF, call the U.S. Government
Printing Office (GPO), toll free, at
1–888–293–6498; or in the Washington,
DC, area at (202) 512–1530.
You may also view this document in
text or PDF at the following site:
http://www.ed.gov/programs/mep/
legislation.html.
Note: The official version of this document
is the document published in the Federal
Register. Free Internet access to the official
edition of the Federal Register and the Code
of Federal Regulations is available on GPO
Access at: http://www.gpoaccess.gov/nara/
index.html.
(Catalog of Federal Domestic Assistance
Number 84.011: Title I, Education of Migrant
Children.)

List of Subjects in 34 CFR Part 200
Administrative practice and
procedure, Adult education, Allocation
of funds, Children, Coordination,
Education of children with disabilities,
Education of disadvantaged children,
Elementary and secondary education,
Eligibility, Family, Family-centered
education, Grant programs—education,
Indians—education, Institutions of
higher education, Interstate
coordination, Intrastate coordination,
Juvenile delinquency, Local educational
agencies, Local operating agencies,
Migratory children, Migratory workers,
Neglected, Nonprofit private agencies,
Private schools, Public agencies, Quality
control, Re-interviewing, Reporting and
recordkeeping requirements, Stateadministered programs, State
educational agencies, Subgrants.
Dated: July 18, 2008.
Kerri L. Briggs,
Assistant Secretary for Elementary and
Secondary Education.

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

■

PART 200—TITLE I—IMPROVING THE
ACADEMIC ACHIEVEMENT OF THE
DISADVANTAGED
1. The authority citation for part 200
continues to read as follows:

■

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

2. Revise § 200.81 to read as follows:

§ 200.81

Program definitions.

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

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

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

15,000 square miles, and migrates a
distance of 20 miles or more to a
temporary residence.
(f) Migratory fisher means a person
who, in the preceding 36 months, has
moved, as defined in paragraph (g), from
one school district to another, or from
one administrative area to another
within a State that is comprised of a
single school district, in order to obtain
temporary employment or seasonal
employment in fishing work. This
definition also includes a person who,
in the preceding 36 months, resided in
a school district of more than 15,000
square miles and moved, as defined in
paragraph (g), a distance of 20 miles or
more to a temporary residence in order
to obtain temporary employment or
seasonal employment in fishing work.
(g) Move or Moved means a change
from one residence to another residence
that occurs due to economic necessity.
(h) Personal subsistence means that
the worker and the worker’s family, as
a matter of economic necessity,
consume, as a substantial portion of
their food intake, the crops, dairy
products, or livestock they produce or
the fish they catch.
(i) Qualifying work means temporary
employment or seasonal employment in
agricultural work or fishing work.
(j) Seasonal employment means
employment that occurs only during a
certain period of the year because of the
cycles of nature and that, by its nature,
may not be continuous or carried on
throughout the year.
(k) Temporary employment means
employment that lasts for a limited
period of time, usually a few months,
but no longer than 12 months. It
typically includes employment where
the employer states that the worker was
hired for a limited time frame; the
worker states that the worker does not
intend to remain in that employment
indefinitely; or the SEA has determined
on some other reasonable basis that the
employment is temporary. The
definition includes employment that is
constant and available year-round only
if, within 18 months after the effective
date of this regulation and at least once
every three years thereafter, the SEA
documents that, given the nature of the
work, of those workers whose children
were previously determined to be
eligible based on the State’s prior
determination of the temporary nature
of such employment (or the children
themselves if they are the workers),
virtually no workers remained
employed by the same employer more
than 12 months.
■ 3. Amend § 200.83 as follows:
■ a. Redesignate paragraphs (a)(3) and
(a)(4) as paragraphs (a)(4) and (a)(5),

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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) * * *
(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 allocations for each SEA for
FY 2006 and subsequent years (as well
as for supplemental MEP allocations for
FY 2005), the Secretary determines each
SEA’s FY 2002 base allocation amount
under section 1303(a)(2) and (b) of the
Act by applying, to the counts of eligible
migratory children that the SEA
submitted for 2000–2001, the defect rate
that the SEA reports to the Secretary
and that the Secretary accepts based on
a statewide retrospective reinterviewing process that the SEA has
conducted.
(2)(i) The Secretary conditions an
SEA’s receipt of final FY 2007 and
subsequent-year MEP awards on the
SEA’s completion of a thorough redocumentation of the eligibility of all
children (and the removal of all
ineligible children) included in the
State’s 2007–2008 MEP child counts.
(ii) To carry out this redocumentation, an SEA must examine
its rolls of all currently identified
migratory children and remove from the
rolls all children it judges to be
ineligible based on the types of
problems identified in its statewide
retrospective re-interviewing as causing
defective eligibility determinations.

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(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 prior to the enactment of this
regulation, as well as an SEA with a
defect rate that is not accepted by the
Secretary under paragraph (a)(1) of this
section, or an SEA under a corrective
action issued by the Secretary under
paragraph (b)(2)(vii) or (d)(7) of this
section, must, within six months of the
effective date of these regulations or as
subsequently required by the
Secretary,—
(A) Conduct a statewide 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 may adjust the child counts
for 2000–2001 and subsequent years

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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
categories associated with identified
risk factors (e.g., experience of
recruiters, size or growth in local
migratory child population,
effectiveness of local quality control
procedures) in order to help identify
possible problems with the State’s child
eligibility determinations;
(iii) Conduct re-interviews with the
parents or guardians of the children in
the sample. States must use a face-toface approach to conduct these reinterviews unless circumstances make
face-to-face re-interviews impractical

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and necessitate the use of an alternative
method such as telephone 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,
including retrospective re-interviewing,
required by the Secretary.
(c) Responsibilities of SEAs to
document the eligibility of migratory
children. (1) An SEA and its operating
agencies must use the Certificate of
Eligibility (COE) form established by the
Secretary to document the State’s
determination of the eligibility of
migratory children.
(2) In addition to the form required
under paragraph (a) of this section, the
SEA and its operating agencies must
maintain any additional documentation
the SEA requires to confirm that each
child found eligible for this program
meets all of the eligibility definitions in
§ 200.81.
(3) An SEA is responsible for the
accuracy of all the determinations of the
eligibility of migratory children
identified in the State.
(d) Responsibilities of an SEA to
establish and implement a system of
quality controls for the proper
identification and recruitment of eligible
migratory children. An SEA must
establish and implement a system of
quality controls for the proper

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44125

identification and recruitment of
eligible migratory children on a
statewide basis. At a minimum, this
system of quality controls must include
the following components:
(1) Training to ensure that recruiters
and all other staff involved in
determining eligibility and in
conducting quality control procedures
know the requirements for accurately
determining and documenting child
eligibility under the MEP.
(2) Supervision and annual review
and evaluation of the identification and
recruitment practices of individual
recruiters.
(3) A formal process for resolving
eligibility questions raised by recruiters
and their supervisors and for ensuring
that this information is communicated
to all local operating agencies.
(4) An examination by qualified
individuals at the SEA or local
operating agency level of each COE to
verify that the written documentation is
sufficient and that, based on the
recorded data, the child is eligible for
MEP services.
(5) A process for the SEA to validate
that eligibility determinations were
properly made, including conducting
prospective re-interviewing as described
in paragraph (b)(2).
(6) Documentation that supports the
SEA’s implementation of this 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 State audit findings
and recommendations, or monitoring or
audit findings of the Secretary.
Authority: 20 U.S.C. 6391–6399, 6571,
7844(d); 18 U.S.C. 1001.
[FR Doc. E8–16859 Filed 7–28–08; 8:45 am]
BILLING CODE 4000–01–P

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