Notice-Agricultural Worker Population Estimates for Basic Field-Migrant Grants, 6295-6299 [2016-02201]
[Federal Register Volume 81, Number 24 (Friday, February 5, 2016)]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-02201]
LEGAL SERVICES CORPORATION
Notice--Agricultural Worker Population Estimates for Basic
AGENCY: Legal Services Corporation.
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
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); email@example.com. 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);
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
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
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.
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
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.
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
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
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
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
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
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
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
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)
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
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.firstname.lastname@example.org
identify the need for the NAWS information for commenting on this LSC
proposal and explain why the NAWS public data file does not provide
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
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
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
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