Notice-Agricultural Worker Population Estimates for Basic Field-Migrant Grants, 6295-6299 [2016-02201]

Agencies

[Federal Register Volume 81, Number 24 (Friday, February 5, 2016)]
[Notices]
[Pages 6295-6299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-02201]


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LEGAL SERVICES CORPORATION


Notice--Agricultural Worker Population Estimates for Basic 
Field--Migrant Grants

AGENCY: Legal Services Corporation.

ACTION: Notice.

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SUMMARY: On February 3, 2015, the Legal Services Corporation (LSC) 
published a notice in the Federal Register requesting comment on a 
proposal to update the agricultural worker population estimates used 
for determining the amount of Basic Field funds that LSC will 
distribute through Basic Field--Migrant grants. 80 FR 5791. Based on 
comments received in response to this notice, LSC has identified three 
areas for further public input.
    Specifically, LSC seeks (1) comments on the methodology and data 
used for estimating the agricultural worker population by the U.S. 
Department of Labor's Employment Training Administration (ETA) 
considering the additional ETA materials published

[[Page 6296]]

with this notice; (2) comments on a new estimate of aliens within the 
agricultural worker population who are eligible for services from LSC 
grantees based on sexual abuse, domestic violence, trafficking, or 
other abusive or criminal activities; and (3) submission of available 
and reliable state- or region-specific, data-based estimates of the 
population of agricultural workers eligible for LSC-funded services to 
augment the ETA estimates in individual states or regions. LSC will 
accept such estimates only if they include the data and methodologies 
used, including authorship and other relevant information.

DATES: Comments must be submitted on or before March 21, 2016.

ADDRESSES: Written comments must be submitted to Mark Freedman, Senior 
Associate General Counsel, Legal Services Corporation, 3333 K St. NW., 
Washington, DC 20007-3522; 202-337-6519 (fax); mfreedman@lsc.gov. LSC 
prefers electronic submissions via email with attachments in Acrobat 
PDF format. Written comments sent to any other address or received 
after the end of the comment period may not be considered by LSC.

FOR FURTHER INFORMATION CONTACT: Mark Freedman, Senior Associate 
General Counsel, Legal Services Corporation, 3333 K St. NW., 
Washington, DC 20007-3522; 202-295-1623 (phone); 202-337-6519 (fax); 
mfreedman@lsc.gov.

SUPPLEMENTARY INFORMATION:

I. Introduction

    The Legal Services Corporation (LSC) seeks public comment on three 
enhancements to its proposal to obtain and implement more current 
estimates of the U.S. agricultural worker population eligible for LSC-
funded legal assistance. LSC will use those estimates to determine how 
much of the appropriated Basic Field Programs funds to provide through 
Basic Field--Migrant grants and the distribution of those grants among 
the states and other LSC service areas.
    On February 3, 2015, LSC published a notice in the Federal Register 
at 80 FR 5791 requesting comment on a proposal to recalculate the 
amount and distribution of funds through these grants based on new 
estimates obtained from the U.S. Department of Labor's Employment 
Training Administration (ETA). LSC set out three issues for comment:
    A. Implementing the new estimates for the distribution of grants 
beginning in January 2016.
    B. Phasing in the changes by providing intermediate funding halfway 
between the old and new levels for 2016 and fully implementing the new 
levels for 2017.
    C. Obtaining updated estimates every three years for recalculation 
on the same statutory cycle as LSC obtains updated poverty-population 
data from the U.S. Census Bureau for the distribution of LSC's Basic 
Field Programs appropriation.
    Based on the eleven comments received in response to the notice, 
LSC identified three issues for additional public comment.
    1. LSC is providing increased access to the original source data 
and methodology used by ETA, and LSC seeks comments on ETA's 
methodology and data.
    2. LSC seeks comments on a new proposal for estimating the number 
of aliens within the agricultural worker population who are eligible 
for services from LSC grantees pursuant to 45 CFR 1626.4, based on 
sexual abuse, domestic violence, trafficking, or other abusive or 
criminal activities.
    3. LSC will accept submission of available and reliable state- or 
region-specific, data-based estimates of the population of agricultural 
workers eligible for LSC-funded services to augment the ETA estimates 
in individual states or regions--LSC will accept such estimates only if 
they include the data and methodologies used, including authorship and 
other relevant information.
    Individuals and organizations can submit materials regarding these 
three topics to LSC at the address noted above before the specified 
deadline.
    LSC has posted on www.lsc.gov the original notice, the original ETA 
report, LSC's memo regarding this issue, the comments received, and 
this notice with all referenced tables and appendices. www.lsc.gov/ag-worker-data.

II. Background

    On January 21, 2015, LSC Management issued the LSC Agricultural 
Worker Population Estimate Update--LSC Management Report to the LSC 
Board of Directors (LSC Management Report) providing a detailed 
background and discussion of the need for new population estimates to 
inform LSC's decisions about grant funding for legal services to 
agricultural workers. www.lsc.gov/ag-worker-data (updated January 30, 
2015 version of the report).
    Briefly summarized, Congress annually appropriates funds to LSC for 
supporting legal services for eligible clients through grants to 
``Basic Field Programs'' in each state, territory, and the District of 
Columbia on a per-capita basis using poverty-population data from the 
U.S. Census Bureau. Public Law 104-134, tit. V, Sec. 501(a), 110 Stat. 
1321, 1321-50 (1996), as amended by Public Law 113-6, div. B, tit. IV, 
127 Stat. 198, 268 (2013) (LSC funding formula adopted in 1996, 
incorporated by reference in LSC's appropriations thereafter, and 
amended in 2013). LSC divides the total per-capita funding for the area 
into one category for ``Basic Field--General'' grants and another 
category for ``Basic Field--Migrant'' grants (Migrant Grants) to serve 
the ``special difficulties of access to legal services or special legal 
problems'' of agricultural workers. 42 U.S.C. 2996f(h) (LSC Act 
requirement that LSC address such issues for farmworkers). LSC 
determines where to provide Migrant Grants and how much of the Basic 
Field Programs appropriation to allocate to each Migrant Grant based on 
the agricultural worker population of that area.
    The U.S. Census Bureau does not estimate populations of migrant 
workers or agricultural workers. For Migrant Grants, LSC has been using 
information based on historical estimates dating back to 1990. 
Furthermore, those estimates include only migrant workers and do not 
count the entire population of agricultural workers--migrants and non-
migrants--that LSC expects grantees to serve with Migrant Grants.
    Unlike the U.S. Census Bureau, ETA collects data and provides 
estimates of the agricultural-worker population for federal grants 
serving the needs of the agricultural workers in the U.S. LSC 
contracted with ETA to obtain better and more current estimates of the 
size and distribution of the population of agricultural workers and 
their dependents who are eligible for services provided by LSC 
grantees, and who have incomes below the poverty line (the benchmark 
used by the U.S. Census Bureau for defining the poverty population that 
LSC uses for distribution of the Basic Field Programs appropriation). 
ETA provided LSC with these estimates, including state-by-state 
breakdowns.
    The LSC Management Report described the need for special legal 
services grants to serve agricultural workers and their dependents, how 
LSC funds those legal services, and the need to update population 
estimates for those grants. LSC also provided the new national and 
state[hyphen]by[hyphen]state estimates of the agricultural worker 
population eligible for LSC services as provided by ETA.

[[Page 6297]]

    On February 3, 2015, LSC published a notice in the Federal Register 
at 80 FR 5791 seeking comments on:
    A. Using the new estimates for distribution of Migrant Grants 
beginning in January 2016;
    B. phasing in the funding changes to provide intermediate funding 
halfway between the old and new levels for 2016 and to fully implement 
the new levels for 2017; and
    C. obtaining and implementing new estimates every three years on 
the same cycle as LSC obtains and implements new poverty-population 
data for LSC's Basic Field--General grants.

III. Analysis of Comments Received

    LSC received eleven comments from eight organizations and three 
individuals. The National Legal Aid and Defender Association (NLADA) 
submitted two comments--one from the NLADA Civil Policy Group and one 
from the NLADA Farmworker Section. The American Bar Association 
commented through its Standing Committee of Legal Aid and Indigent 
Defense. Six LSC grantees submitted comments: (1) Georgia Legal 
Services, (2) Iowa Legal Aid, (3) the Michigan Advocacy Program (Legal 
Services of South Central Michigan and Farmworker Legal Services), (4) 
Southern Minnesota Regional Legal Services, (5) Legal Aid of Nebraska, 
and (6) Legal Action of Wisconsin. Three individuals submitted 
comments.
    Generally, the comments supported using better estimates for 
distributing funds for these grants. This section summarizes the 
comments and identifies three issues about which LSC now seeks further 
comment. LSC does not seek comment on any of the other issues in the 
original notice or comments.

A. The Need for Specialized Services and Separate Grants To Support 
Legal Services for Agricultural Workers

    The comments all affirmed the need for specialized services to 
agricultural workers and dependents, and endorsed continuing to 
separate funds for grants for those specialized services out of the 
Basic Field Programs appropriation. These comments agreed with LSC's 
determination that due to a variety of factors--including social, 
cultural, and geographic isolation and the unique body of laws 
governing agricultural employment--eligible agricultural workers and 
their families have special legal problems and difficulties accessing 
civil legal services that are different from those faced by the general 
population of eligible clients. Thus, consistent with the LSC Act's 
requirement to address such issues, LSC should provide separate Migrant 
Grants.

B. More Current Estimates of the Population of Agricultural Workers

    The comments supported LSC's proposal to obtain and use more 
current estimates of the size of the agricultural worker population 
within each state.

C. Updating the Definition of Agricultural Workers

    Most comments supported LSC's proposal to update its definition of 
eligible agricultural workers and dependents to include all crop 
workers (migrant, seasonal, and otherwise), livestock workers, and 
forestry workers.
    One LSC grantee recommended limiting the parameters to people who 
perform agricultural work as migrants and excluding non-migrant 
workers. One individual expressed concern about the impact of including 
livestock and forestry workers (or other non-traditional agricultural 
workers) in the national count of ``agricultural workers.'' That 
commenter argued that those other populations have less need for 
specialized legal services than people working in traditional hand-
harvest labor. Furthermore, that commenter expressed concern that the 
inclusion of these workers would result in a shift in funding and 
service delivery from the ``traditional farmworker states'' to other 
states.
    LSC will include the previously-proposed categories of livestock 
and forestry workers (and other non-migrant agricultural workers) in 
the new estimates as supported by many of the comments. LSC agrees that 
migrant workers and their dependents face particular challenges because 
of their geographic mobility and heightened social and cultural 
isolation. For the reasons set forth in the LSC Management Report, the 
legal needs of non-migrant agricultural workers are more similar to 
those of migrant agricultural workers than to those of non-agricultural 
workers and are most efficiently and effectively addressed by legal 
services providers with experience serving those unique needs. Thus, 
LSC can best serve the legal needs of all individuals eligible for LSC-
funded services by allocating funds to the Migrant Grants for all 
agricultural workers rather than dividing the agricultural worker 
population between Migrant Grants and Basic Field--General grants.
    The comments expressing concerns that a modification in the 
definition of agricultural workers will alter the distribution of funds 
among the states are based on a misunderstanding regarding the 
allocation of funding to Migrant Grants. Changes in Migrant Grant 
funding in one state will not affect Migrant Grant funding in any other 
state. Rather, ``funding for migrant legal services is based on the 
estimated size of the migrant poverty population in each geographic 
area . . . [and] the funding for this population is `backed out' of the 
funding for the rest of [that] state's poverty population.'' LSC 
Management Report, 19 (emphasis added). Thus, increasing the 
agricultural-worker count for one State will have no effect on any LSC 
grants in any other state.
    Finally, some comments also suggested that LSC include off-farm 
fruit and vegetable canning workers in its definition of agricultural 
workers because those workers can face the same barriers to accessing 
civil legal assistance experienced by the agricultural workers 
currently included in LSC's ``agricultural worker'' definition. The ETA 
expert panel recommended excluding those off-farm workers from the 
definition of agricultural workers because those workers are not 
subject to the special Fair Labor Standards Act rules that apply to the 
other categories of agricultural workers. See 29 CFR part 780 
(exemptions for agricultural work). Rather, those off-farm workers are 
subject to the same Fair Labor Standards Act rules as other non-
agricultural U.S. workers. Furthermore, the Migrant and Seasonal 
Agricultural Worker Protection Act does not apply to local workers 
employed in packing, processing, or canning operations. Therefore, LSC 
will not include off-farm fruit and vegetable canning workers in the 
``agricultural worker'' definition.
    One individual commented that LSC should provide funds to serve 
both eligible and ineligible workers. LSC does not structure special-
purpose grants to serve ineligible people.

D. Methodological Issues

    Some comments questioned ETA's methodology, source data, and the 
resulting estimates. As discussed in more detail in Section IV below 
(Areas for Further Public Input), these comments focused on (1) 
potential inaccuracies in ETA's final state estimates based on the use 
of the National Agricultural Worker Survey (NAWS) and United States 
Department of Agriculture (USDA) National Agricultural Statistics 
Service (NASS) regional ratios, (2) the lack of access to the source 
data and methodology used by ETA, and (3) the need for adjustments to 
the estimates for aliens eligible for LSC-grantee services based

[[Page 6298]]

on sexual abuse, domestic violence, trafficking, or other abusive or 
criminal activities. 45 CFR 1626.4--Aliens eligible for assistance 
under anti-abuse laws. LSC will address these concerns through the 
information provided in this notice for additional comment.
    Some comments also asked if the count of eligible dependents of 
farmworkers excluded as ``unauthorized'' aliens who are spouses, 
parents, or (in some cases) children of U.S. citizens and who are 
beneficiaries of pending I-130 petitions for permanent residence. LSC 
grantees can serve those individuals under 45 CFR 1626.5(b). ETA 
reported that the NAWS survey instrument is designed to identify 
individuals with pending I-130 petitions, so that those individuals 
were included in the eligible population estimate.

E. Implementation of New Estimates

    All comments endorsed a phase-in approach, while many suggested a 
delay to allow grantees (both farmworker and basic field grant 
recipients) time to implement appropriate delivery changes based on new 
estimates. LSC's decision to publish this notice seeking additional 
comment has moved implementation to January 2017. LSC will phase in 
funding changes so that one-half of the transition occurs in 2017 and 
the full changes occur in 2018.
    All comments supported LSC's proposal to update the estimates at 
regular intervals. These comments agreed with LSC that updating those 
estimates on a more regular basis would cause less disruption for 
recipients in the future.
    A number of comments, however, questioned whether LSC's proposal to 
update these estimates in three-year intervals would be sufficiently 
regular enough to account for rapid changes in agricultural worker 
populations. Furthermore, comments requested that LSC accept additional 
public comment once more information is known about the impact of the 
Census Bureau's recent announcement concerning discontinuing the so-
called ``three-year estimates'' produced in conjunction with the 
American Community Survey. LSC will adopt the proposed triennial 
adjustment because Congress mandates that LSC obtain updated poverty-
population data from the Census Bureau every three years for 
redistribution of the Basic Field Program appropriation. Public Law 
104-134, tit. V, 501(a)(2)(A), 110 Stat. 1321, 1321-51 (1996), as 
amended by Public Law 113-6, div. B, tit. IV, 127 Stat. 198, 268 (2013) 
(LSC funding formula adopted in the 1996 LSC appropriation, 
incorporated by reference in LSC's appropriations thereafter, and 
amended in the 2013 LSC appropriation). LSC grantees can budget and 
plan service delivery better if LSC makes one adjustment to the 
distribution of grant funds every three years that includes both (1) 
the national distribution among states and territories and (2) the 
local distribution within each state or territory between farmworker 
grants and general-purpose grants.

IV. Areas for Further Public Input

    LSC has identified three additional areas for public comment.

A. LSC Is Providing Increased Access to the Original Source Data and 
Methodology Used by ETA, and LSC Seeks Comments on ETA's Methodology 
and Data

    Some comments maintained that they could not evaluate the validity 
of the ETA estimates because they did not have all the necessary 
information about the methodologies and data used to develop those 
estimates. LSC has provided greater access to the data and methodology 
used by ETA by producing the following additional tables. All tables 
are published at www.lsc.gov/ag-worker-data.
Table I--Updated Estimates of the Size and Geographic Distribution of 
the LSC-Eligible Agricultural Worker Population and the Sources and 
Calculations Used To Develop Those Estimates
    Table I is a forty-three-column table that provides updated 
estimates of the LSC-Eligible Agricultural Worker Population for each 
state, for each region, and nationally and identifies all of the data 
sources, methods and calculations on which the updated agricultural 
working population estimates are based.
Table II--National and State Estimates of the LSC-Eligible Agricultural 
Worker Population--Summary Table
    Table II is an abbreviated version of Table I. This fifteen-column 
table provides the updated estimates of the LSC-Eligible Agricultural 
Worker Population for each state, for each region, and nationally and 
identifies the most significant steps in the estimation formula on 
which the updated agricultural working population estimates are based.
Table III--Percentages of Agricultural Workers by National Agricultural 
Worker Survey (NAWS) Region and State Who Are Authorized and in Poverty
    Table III is a five-column table that identifies for each state, 
for each region, and nationally: (1) The percentage of agricultural 
workers in poverty, (2) the percentage of farmworkers that are U.S. 
citizens or authorized aliens, and (3) the percentage of farmworkers 
that are in both categories.

Table IV--Average Numbers of Dependents per Farmworker by National 
Agricultural Worker Survey (NAWS) Region and State

    Table IV is a five-column table that identifies for each state, for 
each region, and nationally the percentage of agricultural worker 
dependents who are: (1) In poverty, (2) U.S. citizens or authorized 
aliens, and (3) in both categories.
Table V--Number and Percentage of LSC-Eligible Agricultural Workers in 
Each State Who Are Crop, Livestock, and Forestry Workers
    Table V is a nine-column table that identifies for each state, for 
each region, and nationally the percentage and number of agricultural 
workers who are eligible (i.e., in poverty and either U.S. citizens or 
authorized aliens) and who are crop, livestock, or forestry workers.
Table VI--Number of Unauthorized and Below-Poverty Farmworkers Eligible 
for LSC-Funded Services Pursuant to Anti-Abuse Provisions of 45 CFR 
1626.4(3)
    Table VI is a twelve-column table that identifies each for state, 
for each region, and nationally the number of unauthorized and below-
poverty agricultural workers eligible for LSC-funded services pursuant 
to the Anti-Abuse provisions of 45 CFR 1626.4.
Table VII--LSC[hyphen]Eligible Agricultural Worker Population by State: 
Comparison of Current Population Estimates and Updated January 2016 
Department of Labor, Employment and Training Administration (ETA) 
Estimates
    Table VII is a seven-column table that provides for each state and 
nationally the estimated migrant population currently used to allocate 
LSC funding and the updated estimated agricultural worker population.
    Because of NAWS survey data confidentiality issues, not all survey 
data can be published. Persons or entities needing access to the 
restricted NAWS data may seek approval to access the data in either (1) 
Washington, DC, at

[[Page 6299]]

the Employment and Training Administration, U.S. Department of Labor, 
or (2) in Burlingame, California, at the office of ETA's NAWS 
contractor, JBS International. The request should be submitted in 
writing to Mr. Daniel Carroll at ETA_carroll.daniel.j@dol.gov--and 
identify the need for the NAWS information for commenting on this LSC 
proposal and explain why the NAWS public data file does not provide 
sufficient information.

B. LSC Seeks Comments on a New Proposal for Estimating the Number of 
Aliens Within the Agricultural Worker Population Who Are Eligible for 
Services From LSC Grantees Pursuant to 45 CFR 1626.4, Based on Sexual 
Abuse, Domestic Violence, Trafficking, or Other Abusive or Criminal 
Activities

    Several comments questioned the potential exclusion in the 
published estimates of certain non-U.S. citizen ``unauthorized'' 
farmworkers who could be LSC eligible pursuant to specific anti-abuse 
statutes, as provided in 45 CFR 1626.4. LSC separates Basic Field 
Programs funds into Basic Field--General Grants and Migrant Grants in 
order to make LSC funds available through grantees that are best 
equipped to serve the needs of different parts of the population of 
LSC-eligible clients. LSC therefore needs to use the best available 
information to estimate those populations and direct funds accordingly. 
Notably, these estimates do not affect the eligibility of any 
applicants for services; the numbers are used only for distribution of 
funding.
    It is widely recognized by experts in the field that significant 
numbers of non-U.S. citizen farmworkers without work authorization are 
already subject to the abusive or criminal activities that would 
qualify them for LSC grantees' services pursuant to Sec.  1626.4. 
However, the lack of data on this population precluded ETA from 
developing a national number to estimate this population. As a result, 
the published estimates implicitly assume that no unauthorized 
farmworkers are eligible for LSC-funded services.
    This implicit assumption is inconsistent with statutes that 
explicitly authorize representation of unauthorized individuals who 
have been subject to abuse, sexual assault, trafficking, or certain 
other crimes and both public and private data that demonstrate that 
significant numbers of farmworkers are subject to such crimes and 
therefore eligible for LSC-funded services based on the provisions of 
45 CFR 1626.4. In response to these concerns, LSC has identified and 
assessed available sources regarding the extent of these crimes against 
farmworkers and developed a methodology to estimate the size of the 
farmworker population that would be eligible for LSC grantees' services 
based on the provisions of Sec.  1626.4. See Appendix A--Estimate of 
the Population of Agricultural Workers Eligible for LSC-Funded Services 
Pursuant to 45 CFR 1626.4--Anti-Abuse Law. LSC seeks feedback on the 
methodology and results produced by this methodology.

C. LSC Will Accept Submission of Available and Reliable State- or 
Region-Specific Estimates of the Population of Agricultural Workers 
Eligible for LSC-Funded Services To Augment the ETA Estimates in 
Individual States or Regions--LSC Will Accept Such Estimates Only if 
They Include the Data and Methodologies Used, Including Authorship and 
Other Relevant Information

    Some comments raised concerns about the source data and the 
methodology used by ETA. In particular, concerns were raised about the 
types of state groupings used for distribution of the estimated 
population among the states, leading to understatements of the number 
of LSC-eligible farmworkers in particular states. Specifically, 
comments stated that differences affecting agricultural workforces 
within a NAWS/NASS region produced inaccurate estimates for states 
within that region. Comments expressed the concern that states grouped 
together by geographic proximity did not share similarities in 
commodities or farmworker workforces. These comments also identified 
potential sources of more detailed estimates within specific states or 
regions.
    LSC investigated the possibility of ETA's developing alternative 
estimates of the LSC-eligible population by reconfiguring the NAWS/NASS 
regions, but ETA determined that doing so is not feasible.
    Although the NAWS/NASS regions produce the best available 
nationwide and regional population estimates, LSC understands that the 
NAWS/NASS regions might not account for unique, state-specific factors 
that could be relevant to delivery of these legal services in some 
states. Therefore, LSC requests submission of available and reliable 
state- or region-specific estimates of the population of agricultural 
workers eligible for LSC-funded services to augment the ETA estimates 
in individual states or regions. We underscore that the estimates must 
include both the source data (and data description) and a detailed 
summary of the research methodology employed to derive the estimates. 
The information should also identify all authors and any relevant 
citations or references to those estimates or to materials relied upon 
by those estimates. Please note that LSC uses the 100%-of-poverty 
threshold for population estimates. After the close of the comment 
period, LSC will publish on www.lsc.gov all actual, potentially 
reliable estimates submitted and related information. LSC will also 
publish a notice in the Federal Register regarding the availability of 
the estimates and providing a comment period.

    Dated: February 1, 2016.
Stefanie K. Davis,
Assistant General Counsel.
[FR Doc. 2016-02201 Filed 2-4-16; 8:45 am]
BILLING CODE 7050-01-P