Improving the Academic Achievement of the Disadvantaged; Migrant Education Program, 44102-44125 [E8-16859]

Agencies

• DEPARTMENT OF EDUCATION

[Federal Register Volume 73, Number 146 (Tuesday, July 29, 2008)]
[Rules and Regulations]
[Pages 44102-44125]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-16859]



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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

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

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DEPARTMENT OF EDUCATION

34 CFR Part 200

RIN 1810-AA99
[Docket Id 2007-ED-OESE-130]


Improving the Academic Achievement of the Disadvantaged; Migrant 
Education Program

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

ACTION: Final regulations.

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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 Sec. Sec.  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: james.english@ed.gov.
    If you use a telecommunications device for the deaf (TDD), you may 
call the Federal Relay Service (FRS) at 1-800-877-8339.
    Individuals with disabilities may obtain this document in an 
alternative format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person listed in the preceding 
paragraph.

SUPPLEMENTARY INFORMATION: These regulations implement requirements of 
the Migrant Education Program (MEP) as authorized under Part C of Title 
I of the ESEA, as amended. On May 4, 2007, the Secretary published a 
notice of proposed rulemaking (NPRM) for the MEP in the Federal 
Register (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 Sec.  200.81 to add to and improve program 
definitions governing who is considered an eligible migratory child.
     Amending Sec.  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 Sec.  200.89(a) to establish a procedure for 
the Secretary to use State defect rates that the Secretary accepts as 
the basis for adjusting the 2000-2001 counts of eligible migrant 
children, and, thereby determine the base amount of a State's MEP award 
for FY 2006 and subsequent years. This proposed regulation also 
required, as a condition to an SEA's receipt of its final FY 2006 and 
subsequent-year MEP awards, that an SEA conduct a thorough re-
documentation of the eligibility of all children (and the removal of 
all ineligible children) included in the SEA's 2006-2007 MEP child 
counts).
     Adding a new Sec.  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 Sec.  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 Sec.  200.89(d) to establish minimum 
requirements for a system of quality controls that an SEA must 
implement in order to promote accurate migrant child eligibility 
determinations.
    These final regulations contain the following changes from the 
NPRM:
     The definitions of agricultural work and fishing work in 
Sec.  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 
Sec.  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 Sec.  
200.81(d) has been revised to clarify that agricultural work includes 
dairy work.
     The definition of principal means of livelihood in 
proposed Sec.  200.81(i) has been removed.
     The definitions of migratory agricultural worker and 
migratory fisher in Sec. Sec.  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 Sec.  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 Sec.  200.89(i) to mean 
temporary employment or seasonal employment in agricultural work or 
fishing work.
     The definition of seasonal employment in Sec.  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 Sec.  200.81(k) 
has been

[[Page 44103]]

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

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 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 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 Sec.  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 Sec.  200.89(c) to document child eligibility, and stated that 
the paperwork burden associated with meeting these requirements might 
compel these States to end their participation in the MEP.
    Another commenter stated that we had, in our OMB information 
collection package (1810-0662), greatly underestimated the average time 
needed to complete re-interviews, determine eligibility, complete and 
update COEs, and implement the other quality control procedures 
identified in the proposed regulations. The commenter suggested that 
States would need four hours rather than two hours to conduct each re-
interview, four hours rather than one and one-half hours to make an 
eligibility determination, and two hours rather than one-third hour to 
complete a COE.
    Discussion: 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 Sec.  200.89(c), but responsibilities that 
SEAs and their LOAs already have--accounts for over 60 percent of the 
estimated ``additional'' $4.5 million annual cost.
    In addition, the cost and burden-hour estimates identified in the 
preamble to the NPRM and the associated information collection package 
represent an average across all States. The Secretary expects that 
States with smaller MEP allocations will expend considerably fewer 
hours and considerably less program funds in implementing these 
regulations than the averages referred to in the preamble to the NPRM 
in and the information collection package. Of course, conversely, 
States with large MEP allocations will likely expend somewhat greater 
amounts of effort and program funds than the averages, but they also 
receive proportionally more annual MEP funding.
    Finally, with regard to the cost of validating the temporary nature 
of work that otherwise appears to be constant and year-round, the 
Secretary continues to believe that such validation can be accomplished 
at little or no additional expense or burden as part of the process 
that SEAs now conduct to annually update prior eligibility and 
continued residency of migrant children. However, as discussed 
elsewhere in these final regulations, the Secretary is simplifying this 
requirement.
    The Secretary continues to believe, based on both the expertise of 
Departmental staff with prior State-level experience and discussions 
with State MEP staff, that the Department's cost estimates for re-
interviews, determining eligibility, and updating COEs represent a 
reasonable estimate of the average time needed to carry out these 
activities. However, we note that the public will have another 
opportunity to comment on the burden as estimated in the OMB 
information package [1810-0662] before the information requirements of 
the final regulation become effective. The Secretary will take into 
consideration any other comments received from the public on these 
issues.
    Changes: 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 
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 non-regulatory 
guidance how this term applies in specific circumstances. This approach 
will provide SEAs with greater flexibility to consider particular 
situations in different processing industries--each of which has 
different sets of jobs that can reasonably be considered ``initial 
processing'' and different points in the processing cycle where 
``initial processing'' (i.e., of a raw product into a more refined 
product) might reasonably be determined to end.

[[Page 44105]]

    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 Sec.  200.81(a) 
and fishing work in Sec.  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 non-regulatory guidance. Specifically, while the current 
non-regulatory guidance speaks of a worker's ``primary purpose'' being 
to obtain temporary or seasonal employment in agricultural or fishing 
work, we proposed that in order to obtain 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 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

[[Page 44106]]

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 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 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

[[Page 44107]]

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 non-regulatory guidance. Revising the definition to specify the age 
range of an eligible migratory child as between 3 and 21 is also not 
needed. First, the upper age limit of any ``child'' who would be served 
by the MEP and any other of the Title I programs is already established 
in the definition of child 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 Sec.  200.83), as well as Sec.  200.103 (which allows services to 
preschool children) and sections 1115(b)(1) and 1304(c)(2) of the ESEA 
(which allow services to children below school-age), SEAs may provide 
eligible migrant children below the age of three with MEP services.
    Changes: 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 non-regulatory 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 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

[[Page 44108]]

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.
---------------------------------------------------------------------------

    \1\ See, e.g., the Department's Office of Inspector General 
audit of the California MEP, report No. ED OIG/A05G0032.
---------------------------------------------------------------------------

    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 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 
lease-holder are relevant to, or need to be specifically addressed in, 
this definition. We believe that these differences are clear in the 
definitions of agricultural work 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., 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 Sec.  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.

[[Page 44109]]

    Change: A new definition of qualifying work has been added in new 
Sec.  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 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 
Sec.  200.81(k) that an SEA may only deem specific types of employment 
to be temporary if it (1) documents through an annual survey that, 
given the nature of the work, virtually no workers who perform this 
work remain employed more than 12 months even if the work is available 
on a year-round basis, and (2) conducts this survey separately for each 
employer and job site. Commenters stated that conducting the proposed 
annual survey at each job site would be extremely costly and labor-
intensive, particularly on dairy farms, because of the large number of 
sites at which States would be required to conduct the survey. Some 
commenters suggested that there would be substantial administrative 
costs and staff time associated with conducting the annual surveys and 
that, because the proposed regulations would not have provided for 
additional funds to pay for costs of conducting the surveys, the 
proposal would adversely affect the level of MEP services States could 
provide to needy children.
    Several other commenters observed that the proposed survey 
requirement represented an extreme and unwarranted change to existing 
Department practice, would be highly burdensome, and would eliminate 
many families from being identified or served. Still other commenters 
stated that the proposed requirement to conduct annual surveys (by 
individual job site) would be impossible to implement because employees 
and employers are often unwilling to give an SEA complete and valid 
data about turnover rates. One commenter questioned the practicality of 
expecting SEAs to conduct valid surveys of each employer and site. Two 
commenters noted that at every livestock processing plant in the Nation 
there are at least several workers who remain employed year round, and 
the commenter expressed concern that no child of a worker in these 
plants would be eligible to receive MEP services under the proposed 
regulation.
    Discussion: While section 1309(2) of the ESEA requires that a 
migratory worker move in order to obtain temporary or seasonal 
employment in agricultural or fishing work, the law does not define 
``temporary'' employment. As explained more fully in response to other 
comments, the temporary nature of employment that is sought or obtained 
is generally determined either by the worker or the employer. However, 
the Department also recognizes that there are other jobs, such as may 
exist in processing plants or dairy farms, in which the employment is 
constant and year-round but for various reasons workers typically do 
not stay long at these jobs.
    In consideration of employment in these kinds of jobs, the 
Department developed another way SEAs may determine that the employment 
an individual seeks or obtains is ``temporary'' for purposes of the 
MEP. In particular, the Department's most recent non-regulatory 
guidance permits SEAs, for jobs that are constant and year-round, to 
determine the work to be temporary on the basis of an ``industrial 
survey'' that establishes, from personnel data supplied by employers, a 
high turnover rate--at levels specified by the Department--for each job 
category.
    The Secretary's proposal in the NPRM responded to widespread 
dissatisfaction of local, State, and Federal program officials with 
this guidance. Much of this dissatisfaction has been due to the great 
difficulties, if not impossibility, of State or local MEP staff 
obtaining turnover data from employers, and the lack of completeness 
and accuracy of the data that employers did provide. The proposed 
regulation would not have required employers to provide such data. 
Indeed, the preamble to the NPRM [72 FR 25232] clarified the 
Secretary's intent that the necessary attrition data could be easily 
obtained from workers when SEA or local MEP staff conduct their annual 
updates to confirm eligibility and continued residency of eligible 
children identified previously--a task they regularly perform in order 
to compile accurate SEA and local program child counts and to determine 
if new qualifying moves have been made. Thus, the Secretary believes 
that the regulations as proposed addressed those pre-existing concerns 
and similar concerns raised by the commenters.
    Moreover, the Secretary does not believe that there will be 
substantial additional costs and data collection burden associated with 
the process the regulation permits for validating whether certain types 
of year-round work can be considered temporary

[[Page 44110]]

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 year-round jobs that the State had previously 
designated as temporary (or the children themselves if they are the 
workers) the following simple question: has the worker remained 
employed by the same employer for more than one year.
    After further consideration of the comments, however, the Secretary 
believes that this definition can be revised to provide greater 
flexibility for States and still ensure that program objectives related 
to ensuring that workers are legitimately considered to have moved ``in 
order to obtain'' a ``temporary'' job are met. Accordingly, we have 
revised the definition to provide that instead of having to conduct 
annual surveys to document the temporary nature of work that is 
seemingly constant and year-round, an SEA now need only document, 
within 18 months after the effective date of this regulation and at 
least once every three years thereafter, that, given the nature of the 
work, of those workers whose children were previously determined to be 
eligible based on the State's prior determination of the temporary 
nature of such employment (or the children themselves if they are the 
workers), virtually no workers remained employed by the same employer 
more than 12 months.
    We will provide further details about recommended procedures--such 
as combining the process to validate that particular types of 
employment are temporary with existing eligibility checks and updates, 
and whether all or a sample of employers or job sites should be 
examined--in non-regulatory guidance.
    Change: The Secretary has revised the definition of temporary 
employment to clarify how an SEA may determine specific types of 
constant and year-round employment to be temporary. The SEA may do so 
if it documents, within 18 months after the effective date of this 
regulation and at least once every three years thereafter, that, given 
the nature of the work, of those workers whose children were previously 
determined to be eligible based on the State's prior determination of 
the temporary nature of such employment (or the children themselves if 
they are the workers), virtually no workers remained employed by the 
same employer more than 12 months.
    Comments: With respect to States' determination of whether certain 
year-round employment would be considered temporary, we asked in the 
NPRM for input on whether the terms ``a few months'' and ``virtually no 
workers * * * will remain employed more than 12 months'' should 
continue to be used for the final regulation, or whether and what 
firmer time limits, numbers, or percentages might be used instead. 
Several commenters responded to this question by recommending that 
these terms be removed because, as written, they were too vague, would 
create confusion, could provide opportunities for abuse, would be 
expensive to implement, and would exclude a large percentage of 
children currently considered eligible for the MEP by their States.
    Several commenters asked the Department to clarify the meaning of 
the term ``virtually no workers.'' One commenter suggested that the 
term is not quantifiable, and another indicated that a given percentage 
of employees leaving over the course of a year may be more or less