Title I-Improving the Academic Achievement of the Disadvantaged (Migrant Education Program), 28943-28972 [2016-10658]

Agencies

• DEPARTMENT OF EDUCATION

[Federal Register Volume 81, Number 90 (Tuesday, May 10, 2016)]
[Rules and Regulations]
[Pages 28943-28972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10658]



[[Page 28943]]

Vol. 81

Tuesday,

No. 90

May 10, 2016

Part II





Department of Education





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34 CFR Part 200





 Title I--Improving the Academic Achievement of the Disadvantaged 
(Migrant Education Program); Final Rule

Federal Register / Vol. 81 , No. 90 / Tuesday, May 10, 2016 / Rules 
and Regulations

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DEPARTMENT OF EDUCATION

34 CFR Part 200

RIN 1810-AA99
[Docket ID ED-2013-OESE-0119]


Title I--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 issues regulations to implement the Migrant 
Student Information Exchange (MSIX), a nationwide, electronic records 
exchange mechanism mandated under title I, part C, of the Elementary 
and Secondary Education Act of 1965, as amended (ESEA). As a condition 
of receiving a grant of funds under the Migrant Education Program 
(MEP), each State educational agency (SEA) must collect, maintain, and 
submit minimum educational and health information to MSIX within 
established time frames. The regulations are designed to facilitate 
timely school enrollment, grade and course placement, accrual of 
secondary course credits, and participation in the MEP for migratory 
children. Additionally, the regulations ultimately will help the 
Department to determine more accurate migratory child counts and meet 
other MEP reporting requirements.

DATES: These regulations are effective June 9, 2016. However, affected 
parties do not have to comply with the information collection 
requirements in Sec.  200.85 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: Sarah Martinez, U.S. Department of 
Education, 400 Maryland Avenue SW., Room 3E343, Washington, DC 20202-
6135. Telephone: (202) 260-1334 or by email: sarah.martinez@ed.gov.
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Purpose of This Regulatory Action: The MEP is a formula grant 
program authorized under part C of title I of the ESEA. The purpose of 
the program is to ensure, among other things, that all migratory 
children have the opportunity to meet the same challenging academic 
standards that all children are expected to meet, and to prepare them 
for successful transition to postsecondary education or employment. The 
purpose of this regulatory action is to update the current MEP 
regulations in order to fully implement MSIX, a Web-based platform 
established and maintained by the Department that links States' migrant 
student record systems to facilitate the national exchange of 
educational and health information for migratory children. These 
regulations are necessary for the Department to effectively implement 
the requirement in section 1308(b) of the ESEA that the Secretary 
ensure the linkage of migrant student record systems and for the 
effective implementation of the MEP by States and local operating 
agencies (LOAs) serving migratory children. In addition, section 
1304(b)(3) of the ESEA requires SEAs to provide for educational 
continuity through the timely transfer of pertinent school records, 
including information on health, when children move from one school to 
another, whether or not such move occurs during the regular school 
year. Thus, this congressionally mandated records transfer system will 
help SEAs, local educational agencies (LEAs), and LOAs meet the needs 
of migratory children by having complete, accurate, and up-to-date 
educational and health information immediately available to school and 
program staff where migratory children enroll after they move. As 
defined in section 1309(1) of the ESEA, an LOA is a recipient of MEP 
funds, which may be an LEA to which an SEA makes an MEP subgrant, or a 
public or private agency with which an SEA or the Secretary makes an 
arrangement to carry out an MEP project. A more complete background on 
migratory children and their unique needs as they relate to records 
transfer may be found in the Background section.
    Summary of the Major Provisions of This Regulatory Action: Until 
now, all but one State receiving MEP funds have voluntarily entered 
some minimum data elements (MDEs) into MSIX. However, there is not 
consistency in the timeframes within which States enter these data, or 
in the completeness of data that each State enters for its migratory 
children. These regulations establish basic standards governing the 
collection of MDEs that States receiving MEP funds will need to submit 
to MSIX, so that when migratory children move and enroll in new schools 
and programs, staff in those schools and programs may make timely and 
appropriate decisions to facilitate school enrollment, grade and course 
placement, accrual of secondary course credits, and participation in 
the MEP.
    For purposes of start-up submissions, an SEA must submit all MDEs 
applicable to a migratory child's age \1\ and grade level (i.e., 
``applicable MDEs'') within 90 calendar days of the effective date of 
these regulations for all migratory children who are eligible to 
receive MEP services in the State on the effective date of the 
regulations, other than through continuation of services provided under 
section 1304(e) of the ESEA. In addition, after the effective date of 
the regulations, SEAs must adhere to specific timeframes to collect and 
submit to MSIX the applicable MDEs for: Migratory children for whom an 
SEA has approved a new Certificate of Eligibility (COE), end of term 
submissions, and change of residence submissions. The timelines 
required for these subsequent data submissions range from four working 
days to 30 calendar days. The regulations also require that SEAs 
establish procedures, develop and disseminate guidance, and provide 
training in the use of MSIX Consolidated Student Records. SEAs must 
also use, and require their LOAs to use, reasonable methods to ensure 
data quality and data protection. Finally, the regulations contain 
specific requirements for responding to MSIX record correction requests 
from parents, guardians, and migratory children. A more detailed 
discussion of the major provisions of this regulatory action may be 
found in the Analysis of Comments and Changes section of this preamble.
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    \1\ So that their children have ready access to school programs, 
migratory parents may present to LEAs a variety of documentation to 
prove that their children fall within state- or district-mandated 
minimum and maximum age requirements. The kinds of documents LEAs 
generally accept include a religious, hospital, or physician's 
certificate showing date of birth; an entry in a family bible; an 
adoption record; an affidavit from a parent; a birth certificate; or 
previously verified school records.
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    Costs and Benefits: We have estimated the cost and burden 
associated with these regulations based on data from MSIX, Consolidated 
State Performance Reports (CSPRs), and the U.S. Bureau of Labor 
Statistics National Compensation Survey: Occupational Earnings in the 
United States. We estimate that the total cost to participating SEAs of 
implementing these regulations is approximately $17,363,639 for the 
first

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year, and $16,431,718 annually thereafter. The estimated burden per 
migratory child, amortized over three years, is approximately one hour 
and 30 minutes, at an approximate cost of $46.50 per year. These 
estimates cover the costs of all requirements in these regulations, 
including the costs of information collection activities, which are 
discussed separately under the heading Paperwork Reduction Act of 1995. 
Estimates are based on the initial three-year period for which we 
anticipate OMB will approve the information collection associated with 
these regulations.
    The requirement that agencies serving migratory children use MSIX 
and the Consolidated Student Records generated by MSIX will ensure not 
only that information in MSIX is used, but also that States and LOAs 
acquire an interest in ensuring the quality and timeliness of the data 
they provide to and obtain from the system. Other benefits include 
access to Consolidated Student Records that are current, accurate, 
complete, and secure, and that contain data that may be currently 
maintained in different systems within States; for example, State 
assessment data may not be maintained in the same system as student 
health records. States' previously voluntary participation in MSIX 
reflects the value they see in having this information on migratory 
children in one centralized location, which enables them to better 
serve one of their most vulnerable populations.
    For these reasons, the Department believes that the benefits of 
these regulations will significantly outweigh the estimated costs, much 
of which will be met with Federal resources. A more detailed discussion 
of the costs and benefits of these regulations may be found in the 
Regulatory Impact Analysis section of this preamble.

Background

    A ``migratory child'' is defined by section 1309(2) of the ESEA, as 
amended by the No Child Left Behind Act (NCLB),\2\ and 34 CFR 200.81 as 
a child who is, or whose parent or spouse is, a migratory agricultural 
worker or migratory fisher; and who has moved within the preceding 36 
months in order to obtain, or to accompany such parent or spouse in 
order to obtain, seasonal or temporary employment in agriculture or 
fishing work. In addition, the definition of ``child'' in 34 CFR 
200.103(a), unchanged by ESSA, further requires a migratory child to be 
not older than age 21 and be entitled to a free public education 
through grade 12, or be below the age and grade level at which the LEA 
provides a free public education. Under the MEP, each SEA is 
responsible for: (1) Determining whether a child meets this definition 
of a migratory child, and (2) documenting this information on a COE 
established by the Secretary (and maintaining any additional 
documentation needed to confirm that the child meets this definition of 
a migratory child (see 34 CFR 200.89(c)). In this document, when we 
refer to a child ``eligible for the MEP'' or an ``MEP-eligible'' child, 
we mean that a State has determined that the child meets the 
programmatic definition of a migratory child, and has documented the 
child's eligibility for the MEP on a COE. Participation in the MEP is 
voluntary, and a migratory parent or guardian (or in the case of 
emancipated youth, migratory children themselves) may choose not to 
participate in the MEP, in which case they will not be eligible to 
receive MEP services or be included in the State's count of migratory 
children. A guardian is defined in Chapter II, Section B of the MEP 
Non-Regulatory Guidance as any person who stands in the place of the 
child's parent (``in loco parentis''), whether by voluntarily accepting 
responsibility for the child's welfare or by a court order, and a legal 
document establishing guardianship is not necessary to establish an 
individual as the child's guardian for purposes of the MEP. We apply 
the same definition to the term ``guardian'' used throughout these 
regulations.
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    \2\ On December 10, 2015, the President signed the Every Student 
Succeeds Act (ESSA), Public Law 114-95, (2015), which amends the 
Elementary and Secondary Education Act of 1965 (ESEA). The ESSA 
amends the Migrant Education Program and those amendments take 
effect on July 1, 2017. Public Law 114-113. Throughout this document 
we refer to the ESEA when referencing provisions that are included 
in both NCLB and ESEA. When referencing provisions included under 
only NCLB, we refer to the ``ESEA, as amended by NCLB.''
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    The educational needs of migratory children present unique 
challenges for educators and our Nation's schools. Given the nature of 
their employment, migratory workers and their families often settle in 
a single community for a short period of time. One consequence of this 
mobile lifestyle is that migratory children frequently enroll in new 
schools and school districts without adequate, and in many cases any, 
documentation of their educational and health history. School staff at 
all levels need basic enrollment data, and typically proof of 
immunizations, to place students in the correct grade or course in a 
timely manner. Migrant educators have stressed that students in 
secondary grades have the greatest need for the timely exchange of 
records because they have limited time to correct mistakes that school 
officials make if they lack information needed for proper grade 
placement, course selection, and accrual of course credits required for 
high school graduation. Because migratory children may move at any 
time, including during the summer term when many schools are closed, it 
is imperative to have a reliable system with which SEA, LEA, and LOA 
staff may access up-to-date educational and health information for 
migratory children in a timely manner. MEPs operate throughout the 
year, including during the summer; having timely access to a migratory 
child's educational and health information will help ensure that MEPs 
can provide migratory children with services that appropriately address 
their unique needs.
    MSIX helps meet the needs of migratory children by making current 
educational and health information on those children immediately 
available to school and program staff where migratory children enroll 
after they move. MSIX allows SEAs to upload the required MDEs from 
their own existing State student record systems into a single data 
repository where information on each migratory child is maintained, 
organized, and compiled. As a Web-based platform, MSIX allows 
authorized users to access a migratory child's MSIX record via a Web 
browser. Specifically, from the MDEs that States collect and maintain 
on each migratory child in their own State student record systems and 
that are uploaded into the system, MSIX generates a ``Consolidated 
Student Record.'' This Consolidated Student Record compiles educational 
and health-related MDEs from the various schools and migrant education 
programs in which a migratory child has enrolled, within and across 
States.
    The Consolidated Student Record serves as a starting point to 
facilitate school enrollment, grade and course placement, credit 
accrual, and participation in the MEP for migratory children. However, 
it is not necessarily the sole source of data that educators would use 
to make these decisions. For example, the Consolidated Student Record 
does not contain a child's immunization records or Individual 
Educational Plan (IEP); rather, it will alert the user to whether such 
records exist and from where they can be obtained. But, as a result of 
these regulations, a student's essential educational and health 
information will be presented in a uniform format, and consolidated in 
a central location from existing record systems within and across 
States. The necessary information

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will be available in a timely manner, and the system will direct users 
to other necessary information from both records in, and outside of, 
the State.
    On December 27, 2013, the Secretary published a notice of proposed 
rulemaking (NPRM) for this program in the Federal Register (78 FR 
79222). In the preamble of the NPRM, we discussed on pages 79224 
through 79230 the major proposals to ensure that basic educational and 
health records of migratory children are available promptly to 
facilitate school enrollment, grade and course placement, credit 
accrual, and participation in the MEP. These final regulations maintain 
the same basic structure of the major proposals, and thus will require 
each SEA that receives a grant of MEP funds to--
     Collect, maintain, and submit current and updated MDEs for 
migratory children to MSIX within established timeframes;
     Ensure that all data submitted to MSIX are accurate and 
complete and that appropriate safeguards are in place to protect the 
integrity, security, and confidentiality of Consolidated Student 
Records in MSIX;
     Establish procedures for using, and requiring each of its 
subgrantees to use, Consolidated Student Records provided by MSIX; and
     Establish procedures for MSIX data correction by parents, 
guardians, and migratory children. Additionally, we noted that final 
regulations will ultimately help the Department to produce national 
statistical data on the migratory population.
    Significant Changes in the Regulations: The following is a summary 
of the significant changes in these final regulations from the 
regulations proposed in the NPRM. The rationale for each of these 
changes is discussed in the Analysis of Comments and Changes section of 
this preamble.
     Section 200.85(b)(1) has been amended to clarify the SEA's 
responsibility to collect and submit to MSIX the applicable MDEs for 
all eligible migratory children, regardless of the type of school in 
which the child is enrolled (e.g., public, private, or home school), or 
whether a child is enrolled in any school. We also have clarified how 
the SEA meets its responsibility to collect these records in the case 
of migratory children who are or were enrolled in private schools or 
home schools. In addition, we have added specific data collection 
methods that an SEA must use in seeking to obtain the necessary 
educational and health information for eligible migratory children who 
attend, or previously attended, private schools.
     Section 200.85(b)(2) has been amended to limit the data 
collection requirements for every migratory child whom the SEA 
considers eligible for the MEP for purposes of start-up data 
submissions. We had proposed that SEAs be required to collect and 
submit to MSIX MDEs for every migratory child whom the SEA considered 
eligible for MEP services (in accordance with 34 CFR 200.89(c)) within 
one year prior to the effective date of the final regulations. As 
provided in these final regulations, SEAs must instead collect and 
submit to MSIX, as their start-up submissions, MDEs for every migratory 
child whom the SEA considers eligible to receive MEP services in the 
State on the effective date of these regulations, other than through 
continuation of services provided under section 1304(e) of the ESEA. 
Thus, SEAs will not need to go back one year to identify the migratory 
children for whom they must make start-up submissions. If an SEA has 
learned that a child whom it had found to be MEP-eligible is no longer 
eligible for the MEP (e.g., the child is over age 21, is no longer 
entitled to a free public education through grade 12) or is not 
residing in the State as of the effective date of these regulations, 
the SEA does not need to submit to MSIX start-up MDEs for that child.
    Because of this change to the requirement for start-up submissions, 
proposed section 200.85(b)(2)(ii) is no longer applicable. In this 
subsection, we had proposed requiring SEAs to make start-up submissions 
to MSIX for a migratory child whom the State considered eligible for 
MEP services within a year prior to the effective date of these 
regulations, whether or not the SEA has a current COE for the child at 
the time the SEA submits the start-up data. Accordingly, proposed 
section 200.85(b)(2)(ii) has been removed from these final regulations.
     Section 200.85(b)(3)(i) has been amended to replace the 
term ``newly documented migratory children'' with ``migratory children 
for whom an SEA has approved a new Certificate of Eligibility.'' The 
Department considers the two terms to be synonymous, but has 
implemented the change for purposes of clarity, based on confusion 
expressed in comments.
     Section 200.85(b)(3)(ii)(B) has been amended to remove the 
second sentence of the proposed regulation, which required SEAs to 
submit MDE updates and newly available MDEs for any child who continues 
to receive MEP services under section 1304(e) of the ESEA after 
expiration of MEP eligibility. SEAs will still be required to submit 
MDE updates and newly available MDEs through the end of the school year 
for a child whose eligibility expired before the end of the school 
year, regardless of whether the child continued to receive MEP services 
under ESEA section 1304(e).
    Public Comment: In response to our invitation in the NPRM, more 
than 300 parties submitted comments on the proposed regulations. We 
group major issues according to subject. We discuss other substantive 
issues under the specific section number to which they pertain. 
Generally, we do not address technical and other minor changes.

Analysis of Comments and Changes

Support for the Proposed Regulations

    Comments: Several commenters expressed support for these 
regulations. Commenters supported the overall intent and purpose of the 
regulations to meet the unique needs of migratory children. One 
commenter noted that full implementation of the Migrant Student 
Information Exchange (MSIX) is long overdue, given that Congress 
authorized the system in 2001. Commenters also supported specific 
aspects of the regulations, such as records transfer for secondary 
students and the reporting activities required under Sec.  200.85(b)(3) 
for newly documented children, and end of term and change of residence 
submissions.
    Discussion: We appreciate the commenters' support for these 
regulations.
    Changes: None.

Statutory Authority To Use MSIX for the Purposes Stated in the Notice 
of Proposed Rulemaking (NPRM)

    Comments: A number of commenters disputed the Department's 
authority to use the system for some of the purposes stated in the 
NPRM, specifically: To provide stakeholders with census data and 
statistics on the national migratory population; to generate accurate 
child counts; and to meet other reporting requirements related to the 
national migratory child population. Commenters asserted that these 
purposes exceed the Department's authority under section 1308(b) of the 
Elementary and Secondary Education Act (ESEA), which directs the 
Department to implement an interstate migrant student exchange system. 
One commenter stated that broadening the purposes beyond those stated 
in the statute would violate the Administrative Procedure Act (APA).
    In addition, one commenter interpreted the language of section 1308 
of the ESEA, as amended by NCLB,

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which provides that the Secretary shall assist States in developing 
effective methods for the electronic transfer of student records and in 
determining the number of migratory children, to mean that while the 
Secretary is authorized to assist States in these regards, the 
Secretary is not authorized to require States to use the system, as 
proposed in the NPRM.
    Discussion: The Department appreciates, but disagrees with, these 
comments.
    The Secretary is authorized to use MSIX data for the purpose of 
providing stakeholders with census data and statistics on the national 
migratory population and to meet other reporting requirements related 
to the national migratory child population. In administering the 
Migrant Education Program (MEP) and other Federal education programs, 
one of the Secretary's responsibilities is to provide the States, 
Congress, and the public with the most accurate information possible 
about the programs and the population they serve so that States, 
Congress, and the public may use this information to understand the 
programs and improve program operations. See, for example, section 431 
of the Department of Education Organization Act (20 U.S.C. 1231a), 
which authorizes the Secretary to inform the public about federally 
supported education programs and collect data and information on 
applicable programs in order to obtain objective measurements of the 
effectiveness of those programs in achieving their intended purposes. 
See also section 4 of the Government Performance and Results Act (GPRA) 
(31 U.S.C. 1116), which directs each Federal agency annually to report 
on how well each program has met its established performance targets.
    For the MEP, having and reporting the most reliable information 
available is important not only to support the Department's monitoring 
efforts and to help States to properly administer their own grant and 
subgrant programs. It also is important to help inform Congress's 
appropriations and legislative decisions about the MEP and the results 
it is achieving. Provided the Secretary is satisfied that the 
information contained in MSIX is useful for obtaining and reporting 
these aggregate and non-personally identifiable data, the Secretary is 
authorized to use MSIX to carry out this duty.
    To date, all States that receive MEP funds do so on the basis of 
the Secretary's approval of consolidated State applications submitted 
under section 9302 of the ESEA. Under section 9304(a)(6) of the ESEA, 
in exchange for annual receipt of MEP funds on the basis of a 
consolidated State plan, each State educational agency (SEA) provides 
an assurance that the SEA will ``(A) make reports to the Secretary as 
may be necessary to enable the Secretary to perform the Secretary's 
duties under each such program; and (B) . . . provide such information 
to the Secretary . . . as the Secretary may find necessary to carry out 
the Secretary's duties.'' This assurance mirrors the assurance required 
in single State applications under section 441(b)(6) of the General 
Education Provisions Act (20 U.S.C. 1232d(b)(6)). Moreover, regardless 
of whether each State chooses to seek MEP funding under the Every 
Student Succeeds Act (ESSA) under a comparable consolidated State 
application, section 433(b) of the General Education Provisions Act (20 
U.S.C. 1231c) and 2 CFR 200.336 provide for comparable State reporting 
to the Secretary.
    Regarding the use of MSIX data to secure reliable State child 
counts of migratory children, we also note that section 1303 of the 
ESEA builds State child counts into the State funding formula. In 
determining each State's MEP award, section 1303(e)(1) of the ESEA 
directs the Secretary to use data that most accurately reflects each 
State's migratory child count. While we do not propose immediately to 
use minimum data elements (MDEs) in MSIX for the purpose of generating 
migratory child counts, section 1303(e) of the ESEA, as amended by 
NCLB,\3\ authorizes the Department to use MDEs in MSIX for this purpose 
if State counts generated from MSIX are more accurate than State counts 
now being submitted by each State in their Consolidated State 
Performance Reports (CSPRs) via EDFacts or that would be generated by 
any other source of data. Please see the discussion under Alternative 
Methods for Collecting and Reporting Data for the reasons the 
Department believes that State migratory child counts generated from 
MSIX will be more accurate than the migratory child counts that States 
currently submit via EDFacts.
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    \3\ Section 1303(f) of the ESEA, as amended by ESSA.
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    Thus, the Secretary is authorized to collect data to provide 
stakeholders with census data and statistics on the national migratory 
population, to generate accurate migratory child counts, and to meet 
other reporting requirements related to the national migratory child 
population. To carry out these duties, the Secretary is generally 
authorized to collect these data using MSIX if MSIX is a repository of 
the best available data.
    We believe that when MSIX is populated with the MDEs for all 
States' migratory children, it will contain the Nation's most robust, 
uniform, and comprehensive educational and health records for migratory 
children. We further believe MSIX is the most efficient and accurate 
way to meet the Department's administrative responsibilities discussed 
here. In addition, we note that, as much of the data required to meet 
these responsibilities is captured by MDEs, collecting the data through 
MSIX frees up MEP or other State funds that SEAs would otherwise use to 
generate reports to the Department. In response to comments that these 
data gathering and reporting purposes exceed the Department's authority 
under section 1308(b) of the ESEA, which directs the Department to 
implement an interstate migrant student exchange system, we also note 
that section 1308(b) does not proscribe the use of non-personally 
identifiable data contained in MSIX for purposes other than records 
transfer. Consequently, section 1308 does not affect the general 
authority of the Secretary, as described above, to use non-personally 
identifiable MSIX data for census purposes, reports, and generation of 
child counts.
    Finally, we do not agree with the comment that section 1308 of the 
ESEA, as amended by NCLB, permits the Secretary only to assist States 
with developing effective methods for electronic transfer of student 
records and in determining migratory student child counts, but not to 
require States to use the system. While section 1308(b)(1) of the ESEA, 
as amended by NCLB requires the Secretary to assist States in these 
endeavors, section 1308(b) of the ESEA--the specific authority for 
MSIX--goes much further. Specifically, section 1308(b)(2)(A) of the 
ESEA requires the Secretary to ``ensure the linkage of migrant student 
record systems for the purpose of electronically exchanging, among the 
States, health and educational information regarding all migratory 
students.'' This provision requires States to use the system.
    Changes: None.

Alternative Methods for Collecting and Reporting Data

    Comments: A number of commenters expressed policy or cost concerns 
regarding the Department's intent to use MSIX to provide stakeholders 
with census data and statistics on the national migratory child 
population, to generate accurate child counts, and to meet other 
reporting requirements

[[Page 28948]]

related to the national migratory child population.
    A few commenters cautioned that collecting information via MSIX to 
generate child counts and to meet other reporting requirements would 
result in States focusing their MSIX efforts on child count data, 
overshadowing the records transfer purpose of the system. These 
commenters cited the failure of the former Migrant Student Records 
Transfer System (MSRTS) as a basis for their concerns.
    Several commenters asserted that use of MSIX would amount to a 
duplication of effort, since States currently collect this information 
and report it to the Department through EDFacts, which populates the 
annual CSPR.
    Several commenters provided specific reasons why they believe that 
State-level data systems and the CSPR are preferable methods for 
collecting and reporting the information needed for migratory child 
counts and other reporting requirements. Among the reasons cited by 
these commenters were the constant fluctuation of data contained in 
MSIX due to updating of records and the frequency of ``near-matches'' 
of migratory children on States' MSIX work lists that must be resolved 
by States prior to submitting MSIX child count data to the Department. 
A few commenters cited the Department's current use of the CSPR to 
collect data from States for the MEP as well as other Federal programs, 
and questioned why the Department no longer considers this data 
collection sufficient for the MEP.
    Commenters also expressed concerns that migratory child counts 
collected from MSIX would be a ``snapshot'' of data--reflecting 
migratory child counts on a particular day, as opposed to data over a 
period of time--and thus an arbitrary reflection of States' actual 
numbers of migratory children, which would then unfairly impact States' 
MEP allocations. One commenter also expressed concern that out-of-
school youth (OSY) would be excluded from the data collected via MSIX.
    Discussion: The Department appreciates these comments, but does not 
agree with them. First, we have carefully considered the lessons 
learned from the MSRTS, which the Department funded by contract with 
the Arkansas Department of Education until 1995, when Congress agreed 
with the Department that it should be terminated because it was too 
costly and underutilized. State use of MSRTS tended to focus too much 
on generating child counts based on data States provided to MSRTS after 
they identified children as eligible for the MEP, and too little on its 
intended purpose--the collection, transfer, and use of educational and 
health records on migratory children in making school enrollment, 
placement, and credit accrual decisions. In part, this may have been a 
natural consequence of the state of technology at the time; while large 
mainframe computer and terminal sites existed in each State for 
inputting and downloading data, the collection and reporting of 
information relied on a paper-based system that had to get print-out 
reports from terminal sites to the users. For too many migratory 
children, MSRTS included few educational records. Where records were 
present, the system proved too slow and burdensome to be useful to 
school staff.
    MSIX, on the other hand, is a Web-based platform. Building on 
technological advances over the past 20 years, we have designed MSIX 
and these regulations to prevent the recurrence of the problems that 
undermined MSRTS. In particular, the regulations are designed to ensure 
that MSIX users in schools and other project sites that migratory 
children attend will have ready access to complete, trustworthy, and 
up-to-date educational and health records, and that the transfer of 
those records from State records systems through MSIX and then to 
authorized users in school and project sites occurs speedily and 
efficiently.
    We agree with commenters that the data reported to MSIX for 
purposes of generating migratory child counts and to meet reporting 
requirements must not duplicate data that States currently report 
annually to the Department in the CSPR via EDFacts. Use of MSIX, in 
fact, should cure many of the persistent problems we have had with the 
CSPR submissions, making MSIX a more accurate and reliable source of 
data available on migratory children.
    Our ongoing collaboration with State MEP officials in the MSIX Data 
Quality Initiative (DQI) and Child Count Reconciliation processes have 
revealed variation among States in what information they include on 
migratory children in State-level databases, and how these variations 
cause inconsistencies in what they report to the Department through the 
CSPR. The Department asked States to participate in the DQI, the 
purpose of which is to support States by providing assistance in: 
Analyzing and assessing the quality and completeness of data in MSIX; 
identifying common issues causing data inaccuracies; identifying and 
assessing the root causes of data issues; providing more accurate and 
complete data on migratory children; and increasing the overall quality 
of MEP data. The MSIX Child Count Reconciliation process consists of 
four review rounds, in which States voluntarily participate, in order 
to assist the Department in understanding the process that each State 
uses to collect and report its child count to the Department via 
EDFacts. The goal of the process is to establish an accurate, 
consistent, unduplicated migratory child count through MSIX. This will 
allow the Department to produce national data on the migratory 
population.
    Based on the DQI and Child Count Reconciliation processes, we have 
concluded that the data many States submit to the Department in their 
CSPRs reflect under- or over-counting of the number of eligible 
migratory children because of a number of factors, including: (1) 
Failure to submit unduplicated child counts; (2) failure to include in 
their child counts eligible migratory children who turn three years of 
age during the reporting period; (3) inconsistent treatment of children 
whose MEP eligibility has expired, but whom States still serve under 
the ``continuation of services'' provision of the MEP program statute 
(section 1304(e) of the ESEA); and (4) use of different and 
inconsistent criteria across States in calculating child counts. We 
have also noted cases in which States have reported in their CSPRs 
higher numbers of eligible migratory children enrolled in schools 
during the State-scheduled State assessment timeframe under title I, 
part A, than the number of eligible migratory children States reported 
in the corresponding grade levels.
    Utilizing MSIX to generate counts of eligible migratory children 
will avoid these problems through use of a single and uniform set of 
MSIX internal procedures for calculating unduplicated State migratory 
child counts. These procedures involve the application of a ``logic 
rule,'' which specifies the exact data fields and values that will be 
queried to generate child counts, including, but not limited to: 
Qualifying arrival date within 36 months of the beginning of the 
performance period and eligibility expiration date (used to determine 
whether a child was eligible for at least one day during the 
performance period); and enrollment, withdrawal, or residency date 
during the performance period (used to determine whether a child was 
resident in the State for at least one day during the performance 
period). If needed to verify these counts and investigate possible 
duplication, these MSIX procedures can trace preliminary State child 
counts back to student-level

[[Page 28949]]

data--functionality that is not available for data that States submit 
to the Department in CSPRs via EDFacts. When States have submitted all 
required MDEs to MSIX, and the Department has determined that these 
data are complete, our intent is to use MSIX to extract data to 
generate State migratory child counts instead of, not in addition to, 
having States submit the corresponding data elements to the Department 
in their CSPRs. Doing so will reduce, rather than add to or duplicate, 
the total costs of State reporting.
    We agree with the commenters who expressed the importance of 
resolving ``near-matches'' in MSIX (i.e., resolving which records of 
migratory children with similar identifying characteristics belong in a 
single Consolidated Student Record for one migratory child) prior to 
generating State migratory child counts. Indeed, one of the benefits of 
MSIX is its capacity to avoid the creation of duplicate Consolidated 
Student Records for the same migratory child by generating ``work 
lists'' for States to resolve. These work lists provide States with a 
set of ``near matches'' (by comparing the MDEs uploaded for a newly 
identified migratory child with comparable data already in the system). 
By identifying such ``near matches'' and adding them to work lists for 
States to resolve, the system ensures that each migratory child has a 
single Consolidated Student Record that contains the complete course 
history, assessment, and other MDEs for that child. In doing so, MSIX 
is able to produce both a national unduplicated child count and more 
accurate State unduplicated child counts, neither of which can be 
achieved by the migratory child counts collected via the CSPR.
    While we understand commenters' concerns about the generation of 
child counts using a ``snapshot'' of migratory child data for a single 
day, due to the constant fluctuation of information included in the 
records MSIX generates, the Department will follow very similar 
procedures to what States should now have in place to generate their 
child counts from their State databases for CSPR reporting. Data will 
be extracted from the system on a single day, but will capture the 
number of eligible migratory children that were resident in the State 
for at least one day within the defined performance period (currently 
defined as the 12-month period September 1 through August 31); it will 
not be limited to only those migratory children that are eligible and 
resident in the State on the day that the data is extracted from MSIX.
    Thus, MSIX is a significantly improved data source compared to 
currently available data submitted by States through their CSPRs via 
EDFacts because MSIX allows for unduplicated national counts of 
migratory children. Such unduplicated counts (1) are essential to the 
Department's ability to provide accurate reporting on the national 
program, (2) would be the most appropriate data for a needs assessment 
or evaluation of the program on a national level, and (3) will decrease 
costs to States by eliminating their need to report comparable data in 
their CSPRs.
    Finally, in response to a commenter's concern about the exclusion 
of OSY from MSIX data collection, these regulations require States to 
submit MDEs for all eligible migratory children, including secondary 
school-aged migratory children who are not enrolled in school (i.e., 
OSY) and pre-school children.
    Changes: None.

Privacy Concerns

    Comments: One commenter expressed concern that MSIX would be used 
as a tracking tool, discriminating against minority groups (namely, 
Hispanics of Mexican descent), based on the Department's plans to use 
MSIX to provide stakeholders with census data and statistics on the 
national migratory population, to generate accurate child counts, and 
to use statistical data from MSIX to help meet reporting requirements. 
The commenter expressed concerns that requiring input of employment 
information for the parents of migratory children in MSIX and requiring 
eligible children to enroll in the program, constitute violations of 
privacy and Fourth Amendment rights (unwarranted search and seizure of 
information).
    Discussion: The Department appreciates the commenter's concern for 
our Nation's migratory children and families. The commenter's concerns 
are understandable, given that in recent years, some States have 
attempted to use the collection of statistical data on immigrant 
children--note, not specifically migratory children--in a 
discriminatory manner. However, we do not intend for MSIX to ever be 
used in a discriminatory manner, and will make every effort to prevent 
such a use. The Department's position is consistent with its past 
support of the United States Department of Justice in challenging 
aforementioned discriminatory State laws, such as Alabama's H.B. 56, 
Section 28. We do not agree that these regulations in any way 
constitute an invasion of privacy or violation of migratory parents' 
Fourth Amendment rights, and below we explain the safeguards in place 
to prevent MSIX from being used in a discriminatory manner.
    Rather, MSIX is a vital resource that Congress directed the 
Department to implement in order to help meet the educational needs of 
migratory children. The Department does not require any parent to 
enroll a child in the MEP, nor does it require any emancipated youth to 
enroll on his or her own behalf. Migratory agricultural workers, 
fishers, and their families are asked to provide the necessary 
information to determine eligibility for the MEP on a voluntary basis, 
and this information is collected on the child's Certificate of 
Eligibility (COE) (OMB Control Number 1810-0662). While some of the 
information included on a COE is provided to MSIX as MDEs for the 
child, MDEs do not require the collection of specific employment 
information of migratory agricultural workers and fishers beyond that 
collected on the COE and, like the COE itself, do not include race or 
ethnicity data. Thus providing these data to MSIX does not constitute 
an invasion of personal privacy or violate any Fourth Amendment 
safeguards.
    The Department takes all precautions to protect the data contained 
in MSIX, consistent with the very limited uses permitted under the MSIX 
system of records notice published in the Federal Register under the 
Privacy Act on December 5, 2007 (72 FR 68572). In addition to the 
safeguards that ensure the physical security of the electronic data, 
the system limits data access to Department and contract staff on a 
``need to know'' basis and, consistent with MSIX's Rules of Behavior 
that all States must follow, controls individual State and local users' 
ability to access records within the system by granting user names and 
passwords and assigning user roles to individuals that restrict access 
based on user category.
    Finally, we note that Sec.  200.85(f) incorporates important 
requirements to help ensure that States protect the integrity, 
security, and confidentiality of migratory children's data in MSIX.
    Changes: None.

Consultation With Stakeholders

    Comments: Several commenters urged the Department to consult 
further with stakeholders, including MEP State Directors, prior to 
finalizing these regulations, regarding the implementation of MSIX, the 
timelines contained in the proposed regulations, and potential barriers 
to implementation, such as State statutes or State student information 
systems. One commenter urged the Department to consult with 
stakeholders to ensure

[[Page 28950]]

the accuracy of data collected for MSIX, and the use of such data for 
decision-making by schools.
    Discussion: We appreciate the commenters' suggestions, but do not 
agree that further consultation is necessary prior to finalizing these 
regulations. We strongly value the opinions of MEP stakeholders, and 
understand that their input and support are vital to the successful 
implementation and continued use of MSIX. Since 2002, we have consulted 
with SEAs to identify an appropriate set of MDEs along with timelines 
needed to fulfill the statutory requirements for records exchange 
established when the ESEA was last reauthorized. The Department 
proposed the timelines associated with the various data submission 
requirements based on input from various stakeholders. These 
stakeholders included, most recently, representatives from eight States 
that responded to the Department's survey of State officials, as well 
as staff who have worked on records transfer issues at SEAs. In 
addition, since the inception of MSIX, the State User Group for 
Analysis and Recommendation (SUGAR) has provided the Department with 
valuable information related to the MDEs and timelines, and we will 
continue to consult with that group and State MEP officials on MSIX-
related issues in the future.
    In addition to these other forms of consultation, the NPRM provided 
the formal vehicle required by the APA for receiving and considering 
feedback from all interested parties, including, but not limited to, 
MEP State Directors and personnel who work directly with the program. 
Our responses to specific substantive comments on the proposed 
regulations, including the timelines, are discussed in the respective 
sections that follow.
    Although we do not believe that further consultation is necessary 
prior to the finalization of these regulations, we are committed to 
ongoing consultation with stakeholders on how to continue to improve 
MSIX, including with regard to data quality and the use of MSIX data by 
school staff, as the commenter recommended.
    Changes: None.

Inclusion in MSIX of MEP-Eligible Children Enrolled in Home Schools and 
Private Schools

    Comments: Many commenters objected to the proposal to include in 
MSIX the records of migratory children who attend home schools or 
private schools. Most of these commenters questioned the legal basis 
for including records of migratory home school and private school 
students in the MSIX system. Several commenters asserted that, because 
home schools and private schools are not recipients of Federal funding, 
they should not be subject to Federal requirements, while others 
specifically cited the protections afforded to private, religious, and 
home schools by section 9506 of the ESEA.
    Many of the commenters who expressed concerns about the reach of 
these regulations to include records of migratory home school and 
private school students asserted that the proposed regulations infringe 
upon the privacy of these students.
    A few commenters expressed concerns about the precedent that these 
regulations would establish for future data collection on home school 
students. One commenter expressed concerns that under these 
regulations, home schooled migratory children are subject to 
requirements that do not apply to other home schooled children, and 
recommended that the records of migratory home schooled children should 
only be required to be provided to MSIX if and when such children 
enroll in public school.
    Discussion: MSIX is a system that collects educational and health 
information about all eligible migratory children and makes this 
information quickly available to staff of schools and programs in which 
migratory children enroll in order to help ensure their school 
enrollment, grade and course placement, accrual of secondary course 
credits, and proper participation in the MEP. To date, children whom 
States identify as MEP-eligible predominantly attend public schools, 
are not yet at an age to attend school, or are OSY. However, the type 
of school a migratory child attends--public, private, or home school--
has no bearing on MEP eligibility.
    Section 1308(b) of the ESEA provides that each SEA must implement 
the electronic exchange system established by the Secretary (i.e., 
MSIX) for the purpose of transferring among the States ``health and 
educational information regarding all migratory students'' (emphasis 
added). Therefore, the SEA has a responsibility to collect and submit 
into MSIX this information for all migratory students that the SEA has 
documented as MEP-eligible, regardless of where (or whether) the 
students attend school. If parents of migratory children (or in the 
case of emancipated youth, the children themselves) choose to 
participate in the MEP, the SEA must seek to include their records in 
MSIX.
    In response to commenters who stated that home schools and private 
schools should not be subject to these requirements because such 
schools are not recipients of Federal funds, or because of the 
protections afforded to private, religious, and home schools by section 
9506 of the ESEA, we clarify that these regulations do not impose 
requirements on such schools. Instead, the regulations impose 
requirements on SEAs to work with parents or emancipated youth 
themselves to help them arrange to have the private schools provide the 
applicable MDEs for MEP-eligible children to the SEA for uploading into 
MSIX, or to have them obtain these records and then provide them to the 
SEA so that the SEA can do so.
    Although the preamble to the NPRM noted that the data submission 
requirements would apply to any migratory child whom the SEA considers 
eligible for the MEP, regardless of whether the child is enrolled in a 
K-12 public school, or in a private school or home school (78 FR 
79225), the proposed regulations did not expressly address these 
requirements in regard to migratory home school and private school 
students. Accordingly, we are revising Sec.  200.85(b)(1) to clarify 
that SEAs must collect and submit to MSIX the applicable MDEs for all 
eligible migratory children, regardless of the type of school in which 
the child is enrolled (e.g., public, private, or home school), or 
whether a child is enrolled in any school.
    At the same time, although section 1308(b) of the ESEA creates a 
clear legal basis for including the records of these students in MSIX, 
we recognize that SEAs do not exercise the same kind of authority over 
private and home schools that they exercise over local educational 
agencies (LEAs) and public schools in their States. Accordingly, we are 
revising Sec.  200.85(b)(1) to clarify how an SEA would meet its 
responsibility, with respect to MEP-eligible children who attend 
private schools or home schools, to secure the MDEs related to school 
records from LEAs and other LOAs that enroll MEP-eligible children.
    We did not intend to suggest that an SEA could or should require a 
private school or home school to provide these records for uploading 
into MSIX. We presume that a private school generally would voluntarily 
provide these records to the SEA, LOA, or the parent (or emancipated 
youth) if it has received a specific request from a parent or 
emancipated youth to do so. Parents run the home school, so comparable 
considerations do not apply to it. We also stress that it has been the 
Department's long-standing interpretation of the MEP program statute 
(sections 1301 through 1309 of

[[Page 28951]]

the ESEA) to permit parents to decline to have their children 
participate in the MEP. If they decline, the SEA would not have 
responsibility for submitting MDEs for them into MSIX.
    However, if a parent agrees to have his or her child participate in 
the MEP, an SEA has a responsibility under Sec.  200.89(c) to collect 
and document the information that supports a child's MEP-eligibility on 
the COE, and the final regulations clarify each SEA's responsibility to 
collect, maintain, and upload to MSIX all MDEs applicable to the 
child's age and grade level.
    Accordingly, for migratory students in private schools, Sec.  
200.85(b)(1) requires the SEA to do two things. First, the SEA must 
advise the parent of a migratory child, or the migratory child if the 
child is emancipated, of the necessity of requesting the child's 
records from the private school. And second, the SEA must facilitate 
the parent or emancipated child's efforts to request that the private 
school provide all necessary information from the child's school 
records either to the SEA or an LOA for uploading into MSIX, or to the 
parent or emancipated youth directly for provision to the SEA or LOA 
for this purpose. After this is done, the SEA or LOA must follow up 
with the parent, emancipated youth, or private school, as appropriate, 
to see that the requested records are made available. Doing so will 
help to ensure that the SEA fulfills its responsibilities with regard 
to record collection and transfer to MSIX for all MEP-eligible children 
regardless of the child's place of enrollment, and help ensure that 
educational and health information for the child will be available 
promptly upon initial or subsequent school enrollments. We believe this 
approach is the most reasonable one for having SEAs obtain the 
necessary educational and health information for migratory children who 
attend, or attended, private schools and home schools given the 
differing authority SEAs have over private schools and home schools, as 
opposed to LEAs and public schools in their States.
    If a parent does not want his or her child to participate in the 
MEP for any reason, neither the school nor the parent (or emancipated 
youth) must provide the child's information to the SEA, and the SEA has 
no further responsibility to seek the child's records. Thus MSIX and 
our regulations do not infringe upon the privacy of any child by 
compelling this information from private or home schooled students and 
do not set a precedent for requesting information from those who are 
not obligated to provide it.
    Furthermore, we do not agree with the commenter's recommendation 
that the records of home schooled migratory children should only be 
required to be submitted to MSIX if and when such children enroll in 
public school. One of the primary benefits of MSIX and the Consolidated 
Student Record for a migratory child is that the record contains a 
migratory child's educational and health history, which MSIX authorized 
users utilize to make appropriate decisions about a child's school 
enrollment, grade and course placement, and credit accrual needs 
regardless of where in the Nation the migratory child may later seek to 
enroll. In addition, the Consolidated Student Record may be used to 
determine the MEP services that will best address a migratory child's 
needs. Consistent with the purpose of section 1308 of the ESEA, MSIX 
makes these records available for all MEP-eligible children, regardless 
of the type of school they attend, have attended in the past, or may 
attend in the future.
    Changes: We have revised Sec.  200.85(b)(1). We have clarified in 
the general MSIX data submission requirements that SEAs must collect 
and submit to MSIX the applicable MDEs for all eligible migratory 
children, regardless of the type of school in which the child is 
enrolled (e.g., public, private, or home school), or whether a child is 
enrolled in any school. In addition, we have clarified that the SEA 
meets its responsibilities for collecting MDEs from private schools 
that migratory children attend or have attended by working with the 
parent or emancipated youth to provide a written request to the private 
school that the school either provide these records directly to the 
parent or emancipated youth or to an LOA or the SEA, for uploading to 
MSIX. The SEA or its LOA also would have responsibilities for following 
up with the parent, emancipated child, or private school, as 
appropriate.
    Similarly, we have clarified that the SEA meets its 
responsibilities for collecting MDEs from home schools that migratory 
children have attended by requesting this information from the parent 
or emancipated child, either directly or through an LOA.
    Comments: A number of commenters expressed concerns about the cost 
and burden on home school parents and families and private schools 
associated with the inclusion in MSIX of data on home school students 
and private school students.
    Discussion: As noted above, these regulations do not require 
private schools or parents of migratory children (or emancipated 
children themselves) to do anything involuntarily. We do not believe 
that Sec.  200.85(b)(1) establishes any significant burden on those who 
do choose to work to have the MDE information on their children from 
their private or home schools submitted to MSIX. The minimal burden on 
private school officials who respond to records requests from parents 
and emancipated children is accounted for in the time and cost 
associated with collecting the necessary information for any migratory 
child--whether the burden is assumed by a public school official, a 
private school official, or an MEP staff member. Beyond this, we will 
work with SEAs on best practices for the most efficient and inexpensive 
ways of providing migratory children's MDEs to MSIX, so that private 
and home schools may benefit from those practices as well.
    Changes: None.
    Comments: A few commenters asserted that records transfer via MSIX 
for migratory students attending home school or private school is not 
necessary, because the need for records transfer is sufficiently 
addressed by home school and private school families. One commenter 
stated that the need is met by State and local laws; another stated 
that the need is met by parents and teachers; and another stated that 
the need should be met by parents.
    Discussion: We do not agree with the commenters that the need for 
records transfer for all migratory children, including those migratory 
children attending home schools and private schools, will be 
sufficiently addressed in the absence of these regulations. All 
migratory children, including those who attend private schools or home 
schools, may move to a new area at any time, and as a result may seek 
to enroll in a public school or an educational program in their new 
area. If this occurs, these migratory children should benefit from MSIX 
in the same way as any other migratory child. Although educational 
records for some migratory children may be transferred in accordance 
with State and local laws, or as a result of parental requests, the 
MSIX system will ensure that records are available for all migratory 
children in a timely manner.
    Changes: None.

Other General Concerns Regarding Regulations

    Comments: One commenter asked whether the regulations are a way for 
the Department to compel the one State that does not currently use MSIX 
to do so.
    Discussion: The Department is issuing these regulations to 
implement the congressional mandate in section

[[Page 28952]]

1308(b) of the ESEA that the Secretary establish a system for linking 
the various State records systems to ensure that MDEs are available for 
all migratory children whenever they enroll in a new LEA or MEP-funded 
program. The Department is not singling out any State; indeed, while 
nearly all States are now voluntarily participating in MSIX, there is 
not consistency in States' provision of all applicable MDEs for all 
migratory children, or how frequently States provide new or updated 
MDEs to MSIX. These regulations are intended to address these matters, 
so that whenever and wherever migratory children move, the staff of 
schools and programs in the new locations have ready access to basic 
information they need for purposes of timely school enrollment, grade 
and course placement, credit accrual, and provision of services.
    Changes: None.
    Comments: One commenter expressed concerns that the regulations 
focus on K-12 students, and are not designed for the OSY subpopulation 
of migratory children. The commenter noted that his/her State 
identifies more migratory OSY than migratory K-12 children, and 
described various barriers or extra burden associated with collecting 
the necessary data for migratory OSY. These barriers include the fact 
that (1) all OSY require separate input of MDEs; (2) OSY who are 
undocumented lack identification and other documentation; and (3) OSY 
performing work under an H2A visa stay for limited periods of time 
before moving again. In addition, the commenter stated that his or her 
State focuses on serving OSY's immediate needs for the limited period 
of time they remain in the State, and we assume the commenter is 
concerned about the diversion of resources from these services to 
implement MSIX requirements.
    Discussion: The Department appreciates the commenter's concerns, 
but does not agree that the regulations insufficiently address the OSY 
population. These regulations require data submissions for any 
migratory child whom the SEA considers eligible for the MEP, including 
OSY. MSIX is a vital resource for the MEP to help migratory OSY return 
to school, secure the academic course credits they need to obtain a 
high school equivalency degree, or obtain other educational and related 
services.
    We interpret the commenter's concern regarding the necessity of 
inputting OSY information separately to mean that data for OSY is not 
readily available in the State's school-based data systems (for 
children enrolled in K-12 schools), and therefore cannot be as easily 
uploaded from such systems. While collecting and maintaining the 
necessary MDEs for these OSY migratory children might conceivably be 
more costly than collecting and maintaining them for other migratory 
children, this is not necessarily the case. Most of the required MDEs, 
such as name, date of birth, and qualifying arrival date, apply to all 
migratory children, and would have been collected on the COE when the 
SEA determined the child's eligibility for the MEP, so an OSY's lack of 
identification documents should not impose a burden on SEAs solely 
based on the necessity of transmitting this data to MSIX. In fact, by 
completing the COE for OSY, the State has already obtained 20 MDEs that 
it will submit to MSIX using the same electronic interface with MSIX 
the State uses for any other migratory child. Some of the other 42 MDEs 
apply only after a child reaches a certain age or grade level. 
Moreover, the MDEs pertaining to course history only apply to secondary 
school records. If OSY have not attended secondary school in the United 
States, the SEA would not need to submit those MDEs for those OSY 
because such MDEs would not exist. For OSY who have attended secondary 
schools in the United States, obtaining MDEs from those secondary 
schools should be no more difficult or burdensome than it is for in-
school migratory youth.
    Finally, in response to the concern that OSY performing work under 
H2A visas stay in one location for a brief period of time, we reassert 
the importance of inputting MDEs for all eligible migratory children. 
The most mobile migratory children are especially likely to benefit 
from the immediate access to records contained in MSIX.
    Changes: None.

Minimum Data Elements (Sec.  200.81)

    Comments: Several commenters expressed concerns or provided 
suggestions regarding the MDEs collected in MSIX. One commenter 
recommended that the MDEs in MSIX be added to the Common Education Data 
Standards (CEDS) or be modified to adopt the data definitions in CEDS. 
The commenter cited the increasing use of CEDS by States (including for 
other Federal data collections and by vendors) and stated that 
compliance with the MSIX data collections is complicated by definitions 
that differ from other Federal data collections, citing course history 
data as an example.
    Two commenters recommended additional MDEs. One commenter suggested 
that we add a migratory worker's Qualifying Activity as an MDE. One 
commenter recommended that we collect more specific information on 
migratory students who are English Language Learners (ELLs), 
specifically the services, assessments, and accommodations provided to 
ELL migratory students.
    One commenter requested that all 72 MDEs be listed in one document. 
One commenter requested clarification on the Clock Hours, Grade-to-
Date, and Course History MDEs. The commenter specifically asked whether 
Clock Hours is intended to capture the number of hours the student 
attended a class (hours enrolled and present for instruction) or the 
number of hours the student was enrolled (regardless of actual 
attendance). Citing the variation in State procedures for collecting 
and reporting data received from LEAs at the end of the school year, 
the commenter also requested that we clarify the frequency with which 
SEAs must submit Course History MDEs.
    One commenter cited burdens associated with the Designated 
Graduation School MDE and health-related MDEs. The commenter stated 
that this information is difficult, if not impossible, for smaller 
States to complete, given that a majority of their migratory population 
is present for only a few weeks during the summer. One commenter asked 
the Department to further consider the practicality of the requirement 
for States to report partial credit, because many States do not 
currently collect this information in their student record systems.
    Discussion: We appreciate the commenters' suggestions, and will 
consider implementing some of them following issuance of these 
regulations. In addition to our responses to the commenters' specific 
questions and comments regarding MDEs in this discussion, we will also 
continue to provide technical assistance and guidance following 
issuance of these regulations, in order to help MSIX users understand 
the specific requirements of the 72 MDEs. If, after consulting with 
States, the Department concludes that it is necessary to collect 
additional MDEs beyond the 72 MDEs associated with these regulations, 
the Department will, as part of Paperwork Reduction Act-required 
procedures, seek public comment on additional MDEs via publication of 
an Information Collection Notice (ICN) in the Federal Register.
    In response to the comment about either adding MSIX MDEs to CEDS, 
or modifying MDEs to reflect the data definitions used in CEDS, we 
first clarify for readers what CEDS is. The CEDS project is a national 
collaborative effort to develop voluntary, common data standards for a 
key set of education

[[Page 28953]]

data elements to streamline the exchange, comparison, and understanding 
of data within and across early learning through postsecondary and 
workforce (P-20W). To develop voluntary common standards and to support 
SEAs in improving data quality, the National Center for Education 
Statistics in 2009 established a technical working group, now called 
the CEDS Stakeholder Group, which includes representatives from across 
the P-20W field. CEDS is not a student records system or a data 
collection, and adoption of the standards, in whole or in part, is 
voluntary. We note that, when we compared the MSIX MDEs and CEDS, 72 
percent of the MDE and CEDS definitions were identical, very similar, 
or similar. We will explore the feasibility of aligning existing CEDS 
definitions with the remaining MDEs that are not currently aligned to 
CEDS and which are not unique to the migratory child population.
    With regard to suggestions that we supplement the existing MDEs, we 
will consider discussing with migrant education stakeholders the 
desirability of adding to the existing MDEs such information as 
Qualifying Activity, and more detailed information regarding migratory 
children who are ELLs. We note that, as information about ELLs is 
currently collected, MSIX allows all SEAs to upload the MDEs related to 
student assessments to the system however the State collects and 
reports them. For example, if the State collects and reports that a 
student took the assessment in another language, that information will 
be uploaded to MSIX and appear in the child's MSIX Consolidated Student 
Record. While we will consider the commenters' suggestions, we remind 
readers that the Consolidated Student Record is not intended to capture 
all educational and health information for a migratory child, and will 
often refer users to records, such as immunization records and 
Individualized Education Plans (IEPs), that exist outside of MSIX.
    We also note that all 72 MDEs are contained in the ``MSIX Minimum 
Data Elements'' document that is housed on MSIX and, as such, available 
to all MSIX users.
    With regard to the Clock Hours MDE, this MDE is intended to capture 
the number of hours that a student was enrolled in a course prior to 
withdrawal. As noted on the list of MDEs, the Clock Hours MDE is only 
applicable to courses that a student enrolled in, but has not 
completed, or for which no credit has been granted. With regard to the 
Designated Graduation School MDE, this MDE is only supplied by the 
State in which the student intends to graduate, which, in the great 
majority of cases, is not a State serving the student only during the 
summer months or other brief time period. Therefore, providing data for 
the Designated Graduation School MDE should not significantly affect 
small States which, as the commenter noted, have a majority of their 
migratory population present only during the summer. All MDEs related 
to course history, which include the Grade-to-Date and Clock Hours 
MDEs, are currently only applicable to secondary school-aged migratory 
children, and SEAs must update these MDEs in accordance with the 
timelines specified in the regulations. For example, SEAs must collect 
and submit new and updated MDEs for migratory children within 30 
calendar days of the end of an LEA's or LOA's fall, spring, summer, or 
intersession terms.
    The only health-related MDEs at this time are Immunization Record 
Flag and Med Alert Indicator. Neither of the health-related MDEs 
requires SEAs to collect and submit to MSIX a migratory child's 
immunization records or detailed health information. Rather, each 
functions as an alert to authorized users that such records exist 
outside of MSIX. We believe both of these health-related MDEs are 
essential pieces of information that will facilitate a migratory 
child's enrollment in school and access to services that address a 
child's chronic or acute health issue and, accordingly, require all 
States, including small ones, to include them in MSIX. Finally, with 
regard to the recommendation that the Department further consider the 
practicality of requiring SEAs to collect and report partial credit 
rather than require use of this MDE at this time, we note that the main 
obstacles to graduation for secondary school-aged migratory children 
are credit accrual and placement in coursework linked to high school 
graduation. The migratory lifestyle poses barriers to migratory 
children's progression from one grade to the next and accrual of 
credits toward graduation. Credit-granting alternatives, such as the 
consolidation of partial coursework, may increase the graduation rate 
of migratory children. We understand the commenter's concern that the 
collection of partial coursework is not normally done for the general 
student population, but this is a unique need for migratory secondary 
school-aged children due to their migratory lifestyle.
    Changes: None.

MSIX State Records System and Data Exchange Requirements as a Condition 
of Receiving MEP Grant Funds (Sec.  200.85(a))

    Comments: Several commenters expressed concern about the 
consequences for States that do not comply with these regulations, 
including the timelines for data submissions. One commenter asked what 
specific actions the Department would take against SEAs that do not 
comply with the timeframes that the regulations require. One commenter 
emphasized the importance of realistic timelines in light of the 
financial sanctions associated with non-compliance. Another commenter 
stated that because non-compliance results in a loss of funding, the 
Department must ensure that the regulations adhere to the standard of 
reasonableness under the APA. Commenters cited the burdens of the 
regulations for States with smaller MEP allocations in particular, and 
cautioned the Department that imposing financial penalties for non-
compliance could compound States' frustration or deter States from 
participating in the MEP.
    Discussion: We understand commenters' concerns about the 
possibility that a State that fails to comply with these regulations 
would face a loss of MEP funding. However, the full implementation of 
MSIX is a statutory requirement for all SEAs, and therefore we must 
condition an SEA's receipt of funds on compliance with these 
regulations.
    But while loss of funding is a potential option wherever a grantee 
fails to comply with basic program requirements, our goal is to work 
with all SEAs so that there will be no need for the Department to take 
this kind of action. We want all SEAs to continue to provide migratory 
children with the services they need to achieve academically; and to 
facilitate such academic achievement by having timely access to 
complete records for purposes of school enrollment, grade and course 
placement, credit accrual, and participation in the MEP. At the same 
time, we understand that some States will face implementation 
challenges, and intend to work with them to resolve how they may be 
addressed before we would consider establishing special grant 
conditions or other actions authorized by 2 CFR 200.338. We developed 
these regulations with an understanding that they must adhere to 
standards of reasonableness under the APA, and believe that they do 
adhere to those standards and are realistic.
    Changes: None.

[[Page 28954]]

MSIX State Records System and Data Exchange Requirements--Effect on 
Services (Sec.  200.85(a))

    Comments: A number of commenters expressed concerns that the amount 
of funds and staff time required to comply with the regulations would 
negatively impact the amount of funds and time staff have available to 
serve and recruit migratory students. One commenter asked the 
Department to allocate funds to States specifically for the purposes of 
fulfilling these regulatory requirements, in order to alleviate the 
burden on small-allocation States in particular.
    Discussion: We appreciate the commenters' concerns, but do not 
agree that further changes are necessary at this time. Separate from 
these regulations, every State has a responsibility to promote 
interstate and intrastate coordination of services for migratory 
children, including providing for educational continuity through the 
timely transfer of pertinent school records. All SEAs that currently 
receive MEP funds submitted consolidated State applications, as allowed 
under section 9302 of the ESEA. Under section 9304(a), each 
consolidated State application includes a single set of assurances, 
applicable to each program for which the application was submitted, 
that provides that each such program will be administered in accordance 
with all applicable statutes, regulations, program plans, and 
applications, a provision that mirrors the applicable regulatory 
requirement in 34 CFR 76.700. The ESEA-specific program assurances 
section of the consolidated State application requires that each SEA 
that submits a consolidated application also provide an assurance that 
it will comply with all requirements of the ESEA programs included in 
the consolidated application. Thus, whether or not a State submitted a 
consolidated State application, section 1304(b)(3) of the ESEA would 
require the SEA to ensure that the State provides for educational 
continuity through the timely transfer of pertinent school records. 
This provision must be read in the context of section 1308(b), which 
creates a separate responsibility for all SEAs receiving MEP funds to 
implement reasonable regulatory requirements designed to make 
electronic data transfer work for all migratory students, regardless of 
the State in which they reside and enroll in school and MEP programs. 
We strongly believe that these regulations fulfill this requirement.
    As explained in the Regulatory Impact Analysis section of this 
document, we do not believe these regulations create unreasonable costs 
or burdens on States. For example, these regulations piggyback on 
States' own systems for maintaining appropriate records for migratory 
children. Nearly all States already participate voluntarily in MSIX 
and, to varying degrees, submit the MDEs into MSIX for the migratory 
children they identify as MEP eligible. Moreover, under these 
regulations, MDEs needed for MSIX may continue to be collected through 
existing State student-record systems.
    For those States that are not currently utilizing MSIX in the 
manner and within the timelines required by these regulations, we 
understand that some adjustments to current practices and procedures 
will be necessary, and that some States may incur greater costs and 
burden. In response to the commenter who asked the Department to 
allocate funds to States specifically for the purposes of fulfilling 
these regulatory requirements, following consultation with MEP 
grantees, we will consider the feasibility of providing funds or other 
resources to do so. Further, as we acknowledged in the NPRM, States may 
use MEP funds to cover the costs associated with implementing the 
regulations, albeit with the result that less MEP funding would then be 
available for direct services.
    We believe that, when fully implemented, MSIX will create 
efficiencies in the provision of services to migratory children by 
making their records available promptly for purposes of school 
enrollment, grade and course placement, and credit accrual. Having 
access to such records will allow MEP staff to better serve students by 
utilizing their academic history and other information to target 
services to meet their individual needs. Also, the consistent State use 
of the MSIX email notification system and various MSIX reports, along 
with the availability of timely and accurate data in MSIX, will make 
identification and recruitment efforts more efficient.
    We believe that the requirements contained in these regulations 
represent a careful balance between placing burden on States and other 
agencies providing services to migratory children, and meeting the need 
for collecting and maintaining updated accurate information about this 
mobile population in order to ensure timely transfer of pertinent 
school records when migratory children move from one school district to 
another.
    Changes: None.

MSIX Data Submission Requirements--General Timelines (Sec.  
200.85(b)(1))

    Comments: Six commenters stated that the timelines required by the 
regulations are unrealistic, burdensome, or unreasonable. One commenter 
stated that regulatory deadlines that conflict with State deadlines 
would result in the State's non-compliance with regulatory 
requirements.
    Discussion: We acknowledge the commenters' concerns regarding the 
timelines required by the regulations, but the commenters did not 
provide us with sufficient information to consider the merit of their 
concerns or what alternatives they might recommend. We have responded 
to comments regarding the burden of these regulations as a whole, in 
the Regulatory Impact: Costs and Burden Associated with the Regulations 
section. We respond to comments regarding specific timelines required 
by these regulations, in the following sections: Start-up Data 
Submissions (Sec.  200.85(b)(2)); Subsequent Data Submissions--
Migratory Children for Whom an SEA has Approved a New Certificate of 
Eligibility (Sec.  200.85(b)(3)(i)); Subsequent Data Submissions--End 
of Term Submissions (Sec.  200.85(b)(3)(ii)); and Subsequent Data 
Submissions--Change of Residence Submissions (Sec.  200.85(b)(3)(iii)).
    Changes: None.

Start-up Data Submissions (Sec.  200.85(b)(2))

    Comments: Several commenters expressed concerns about the staffing 
burden associated with start-up submission requirements: Entering data 
for children considered eligible in the previous year; entering course 
history and assessment data for children considered eligible in the 
previous year; verifying data in the State system and MSIX; and making 
any necessary changes to current staff responsibilities and provision 
of additional training. One commenter requested that the Department 
allocate additional funding to small States for the direct 
communication of State student data systems and MSIX to alleviate the 
burden on those States of entering the course history and assessment 
data of every migratory student in the State's system in the year 
preceding the effective date of these regulations. Several commenters 
stated that a longer implementation period is needed.
    Discussion: We appreciate the commenters' concerns about the burden 
associated with start-up submissions. Having considered the matter 
further, we agree that it would be unnecessarily

[[Page 28955]]

burdensome to require States to collect and submit to MSIX within 90 
days of the effective date of the regulations all applicable MDEs for 
every migratory child the State considered eligible for MEP services 
within one year preceding the effective date of the final regulations. 
Accordingly, we have reduced the burden by requiring States to collect 
and submit to MSIX within 90 days of the effective date of these 
regulations all applicable MDEs only for every migratory child who is 
eligible to receive MEP services in the State on the effective date of 
these regulations, other than through continuation of services provided 
under section 1304(e) of the ESEA, as opposed to every migratory child 
the State considered eligible for MEP services within the previous 
year. By ensuring that the start-up submissions focus only on children 
whom States consider to be eligible to receive MEP services in the 
State on the effective date of the regulations, other than through 
continuation of services, Sec.  200.85(b)(2) reduces the number of 
children for whom States must collect and submit applicable MDEs, and 
consequently reduces the burden on States. Moreover, we believe that if 
an SEA has good reason to believe a migratory child is no longer 
residing in the State or no longer meets the MEP eligibility criteria 
(e.g., the child is over age 21, is no longer entitled to a free public 
education through grade 12), and thus is not eligible to receive MEP 
services in the State on the effective date of these regulations, that 
State should not be responsible for start-up submissions. Thus, a State 
does not need to go back a year to provide start-up submission, and it 
also does not need to provide start-up submissions for a migratory 
child for whom it has information--either through MSIX or other means--
that the child is no longer eligible for the MEP or is residing out of 
State on the effective date of the regulations.
    We acknowledge that these start-up submissions may require States 
to provide extra training and/or adjust staff responsibilities in order 
to collect and submit the necessary data, but start-up data submissions 
are a one-time effort. Because the Department has reduced the burden 
for States by narrowing the population of migratory children for whom 
start-up submissions must be made, we maintain the requirement that 
States collect and submit this start-up data within 90 days of the 
effective date of these regulations. We also will consider, upon 
consultation with States, the feasibility of providing additional 
funding and resources to States to assist them in meeting the 
responsibilities entailed by these new regulatory requirements.
    Changes: We have revised the requirements for start-up submissions 
in Sec.  200.85(b)(2), to require SEAs to collect and submit to MSIX 
the applicable MDEs for migratory children eligible to receive MEP 
services in the State on the effective date of the regulations, other 
than through continuation of services provided under section 1304(e) of 
the ESEA.
    Because of this change to the start-up submissions requirement, 
proposed Sec.  200.85(b)(2)(ii) is no longer applicable. This 
subsection included a requirement for SEAs to make start-up submissions 
to MSIX for a migratory child whether or not the SEA has a current COE 
for the child at the time the SEA submits the start-up data. Under the 
revised requirement, an SEA will only be required to make start-up 
submissions for migratory children the SEA considers eligible for MEP 
services on the effective date of the regulations (i.e., the child has 
a current, State-approved COE, is age 21 or younger, is entitled to a 
free public education through grade 12, and is considered still a 
resident of the State, and so eligible for MEP services), other than on 
the basis of continuation of services under section 1304(e) of the 
ESEA. Accordingly, proposed Sec.  200.85(b)(2)(ii) has been removed 
entirely.

Subsequent Data Submissions--Migratory Children for Whom an SEA Has 
Approved a New Certificate of Eligibility (Sec.  200.85(b)(3)(i))

    Comments: Based on the wording used in the NPRM for the proposed 
requirement (``newly documented migratory children''), one commenter 
questioned the meaning of the term, and whether the 10-day timeframe 
for collecting and submitting to MSIX the MDEs for such a migratory 
child begins with the date the COE is completed, entered in MSIX, or 
signed by the recruiter. The commenter also cited potential delays with 
such a timeline due to the processes associated with COE quality 
control, such as COE approval and COE data entry in State systems.
    One commenter stated that MEP staff currently make every effort to 
ensure timely data submissions, and that the timeframes required by 
Sec.  200.85(b)(3)(i) are unrealistic and will sacrifice data quality 
for the sake of rapid data entry. One commenter stated that the 10-day 
timeframe is unrealistic for a small State, as approximately 55 percent 
of COEs are collected within a three-week timeframe.
    Several commenters stated that the 10-day timeframe required under 
Sec.  200.85(b)(3)(i)(B)(1) (for collection and submission to MSIX MDEs 
from the most recent secondary school in that State attended previously 
by a newly documented secondary school-aged migratory child) is 
unreasonable and unnecessary. Commenters cited the following barriers 
to obtaining the necessary secondary school records within 10 working 
days: Some MEP summer projects are not affiliated with school districts 
and do not have direct access to the State data system to obtain the 
necessary school records; the SEA does not have immediate access to the 
necessary records at the State level; the SEA relies on LEA staff, who 
may not be familiar with the MEP, may have competing work priorities, 
or may be unavailable during summer months; assessment data and other 
school records are uploaded to the State database on a timeline that 
does not align with the 10-day requirement contained in the 
regulations; and lack of staff.
    Several commenters provided descriptions of existing State 
processes for obtaining academic records, as support for why Sec.  
200.85(b)(3)(i)(B)(1) is unnecessary. The commenters stated that LEAs 
obtain necessary course history information from the State's own 
database, and would not rely on, or accept as an authoritative source 
of information, MSIX records containing secondary course information, 
for purposes of course placement or credit accrual.
    Discussion: In response to the commenter who requested that we 
clarify both the term ``newly documented migratory children'' and 
thereby when the 10-working day requirement begins, we note that: Sec.  
200.85(b)(3)(i)(A) states that it begins with the documentation of 
child's eligibility; and Sec.  200.89(c)(1) provides that the State 
must use a COE to document eligibility. Therefore, the 10-day period 
begins with the date the SEA-designated reviewer approves the child's 
COE. Accordingly, an SEA's quality control processes and procedures 
associated with reviewing and approving COEs before the SEA-designated 
reviewer approves the COE does not impact when the 10-day period 
begins. In addition, given both the confusion expressed in those 
comments about the meaning of the term ``newly documented'', and the 
fact that the Department has not to date used the term ``newly 
documented'' to describe migratory children, we have substituted the 
term used in the NPRM with what we believe is a clearer and synonymous

[[Page 28956]]

phrase: ``migratory children for whom an SEA has approved a new 
Certificate of Eligibility.''
    We disagree with the commenters who stated that the 10-working day 
requirement for subsequent data submissions for migratory children for 
whom an SEA has approved a new COE is unrealistic or not feasible. As 
detailed in the Department's 2004 Report to Congress on the 
``Maintenance and Transfer of Health and Educational Information for 
Migrant Students by States,'' the Department engaged in many State 
consultations in which it received advice on the MDEs and associated 
timelines. A consensus was reached during the Department's MSIX 
consultations with SEAs and stakeholders that an SEA could be expected 
to submit a migratory child's MDEs to MSIX within 10 working days of 
the date that the SEA documents under Sec.  200.89(c)(1) that the child 
is eligible for the program. We acknowledge that this requirement and 
others contained in these regulations may require SEAs to implement 
changes, such as modifying existing staff responsibilities, providing 
additional training, or coordinating with non-MEP LEA and/or SEA staff, 
to ensure the necessary student data can be collected and submitted to 
MSIX in adherence to the regulatory timelines.
    As stated in the paragraph above, the 10-working day requirement 
starts with the date that the SEA-designated reviewer has approved the 
child's COE. There is no regulatory requirement for the SEA to identify 
and recruit a migratory child within a maximum number of days after the 
child has made a qualifying move; nor is there a regulatory requirement 
for the SEA to complete the COE approval process within a maximum 
number of days after the child has been identified and recruited. While 
we strongly encourage all SEAs to complete these processes and 
procedures in a timely manner so that migratory children may begin 
receiving services as quickly as possible, MEP requirements do not 
dictate when the SEA must complete them or how soon the SEA must begin 
providing services after the child makes a qualifying move. Still, 
because migratory children may seek enrollment in school or in an MEP 
program at any time, we believe it is of critical importance that SEAs 
collect and submit the applicable MDEs to MSIX for each migratory child 
for whom an SEA has approved a new COE within no more than 10 working 
days after the SEA has approved the COE, in order to meet the system's 
purposes of timely school enrollment, grade and course placement, 
credit accrual, and participation in the MEP.
    We also believe it is reasonable to expect that, for non-secondary 
school-aged children, a majority of the MDEs applicable to the child's 
age and grade level will already be available to the SEA; these MDEs 
would have been collected and recorded on the child's COE. We emphasize 
that for non-secondary school-aged children, the regulations do not 
require SEAs to collect and submit MDEs in existence prior to the date 
that the SEA documents the child's eligibility (i.e., the date that the 
SEA approved the child's current COE). Collecting and submitting them 
might well be desirable, but these actions are not covered by the 
regulations.
    For secondary school-aged migratory children, we believe it is 
necessary for SEAs to collect and submit to MSIX within 10 working days 
all applicable MDEs from the most recent secondary school in the State 
previously attended by the child. If the LEA has not already entered 
the necessary information in the State's database, the SEA will need to 
collect the necessary information from the school's or LEA's records, 
and submit it to MSIX within 10 working days of approving a new COE for 
the migratory child. We understand the commenter's concern that MEP 
summer projects (LOAs) may not be affiliated with school districts and 
therefore would not have direct access to the State data system to 
obtain the necessary school records. However, these regulations apply 
to the SEA as the Department's grantee; therefore, it is the 
responsibility of the SEA to ensure that the applicable MDEs for each 
eligible migratory child are uploaded to MSIX within 10 working days. 
Meeting this responsibility may entail SEAs amending their current 
database access policies or procedures to allow MEP summer projects 
that are not affiliated with a school district to access the State's 
student database, or ensuring that non-MEP funded LEAs will be 
available in the summer months to provide the necessary data. The 
Department plans to issue non-regulatory guidance to assist States in 
determining the applicable MDEs for secondary school-aged migratory 
children that must be collected and submitted under this requirement.
    We do not agree with the commenters who stated that proposed Sec.  
200.85(b)(3)(i)(B)(1) is unnecessary, given existing State processes 
for obtaining academic records. We understand that LEAs likely will not 
rely on a child's MSIX record as the sole source of information for 
course placement and credit accrual. However, we do not believe this 
negates the need for SEAs to collect and submit the applicable MDEs to 
MSIX within 10 working days of approving a new COE for a secondary 
school-aged migratory child. Rather, we believe it is essential to have 
available, within 10 working days of approving a new COE for a 
migratory child, the minimum data necessary to enroll the child in 
school and place him or her in the appropriate classes.
    Changes: Section 200.85(b)(3)(i) has been amended to replace the 
term ``newly documented migratory children'' with the phrase 
``migratory children for whom an SEA has approved a new Certificate of 
Eligibility''.
    Comments: Several commenters expressed concerns with Sec.  
200.85(b)(3)(i)(B)(2), which requires SEAs to notify MSIX within 30 
calendar days of documenting a newly eligible secondary school-aged 
migratory child if one of its LOAs has obtained records from a 
secondary school in another State attended previously by the newly 
documented migratory child. The commenters stated that 30 calendar days 
is not sufficient time for a small State with minimal staff; the 
information is difficult or impossible to obtain; there is extra burden 
imposed on LOAs by the collection of this information; and more time is 
required to implement the new MDE associated with the proposed 
requirement (MDE 72, Out-of-State Records Flag), including to acclimate 
staff. One commenter observed that the new MDE had not been the subject 
of consultation with the SUGAR group (of which the commenter is a 
member).
    Several commenters asked clarifying questions regarding the new 
MDE: whether the notification to MSIX must be made by the State or by 
the district; clarification on the term ``notify'' and how such 
notification would impact procedures for transmitting data to MSIX; 
whether the MDE would consist of a simple check box to indicate that 
records from a previously attended school had been received; whether 
information regarding the enrollment record and school must be 
included; and how the MDE would benefit most secondary students, as 
subsequent schools may still have to call the original school to 
request records. One commenter also asked how the Department expects 
SEAs to monitor and enforce LOA compliance with the requirement to 
indicate in MSIX whether the LOA has obtained out-of-State secondary 
school records for a newly documented migratory child.

[[Page 28957]]

    Discussion: In response to commenters' concerns about Sec.  
200.85(b)(3)(i)(B)(2), we clarify that these regulations do not require 
SEAs to seek or obtain the out-of-State records from a secondary school 
attended previously by the secondary school-aged migratory child for 
whom an SEA has approved a new COE. If the SEA (or one of its LOAs) 
does choose to seek and obtain such out-of-State records for a 
secondary school-aged migratory child for whom the SEA has approved a 
new COE, the regulations require the SEA to notify MSIX that one of its 
LOAs has obtained such records within 30 calendar days of receipt of 
such records; but the regulations do not require the SEA or its LOAs to 
submit to MSIX the MDEs associated with those out-of-State secondary 
school records. The timeline of 30 calendar days is based on the 
Department's survey of eight State officials, in which we asked how 
many minutes it would take to research whether an out-of-State 
transcript is present and then indicate in the State's system whether 
the information is present. Because the regulations do not require SEAs 
or LOAs to upload the out-of-State records to MSIX, but simply indicate 
whether an LOA has the records, we believe 30 calendar days is a 
reasonable timeline.
    The new MDE associated with this requirement is a flag that 
notifies an authorized user of MSIX viewing the child's record that one 
of a State's LOAs has obtained out-of-State secondary school records 
for the migratory child for whom an SEA has approved a new COE. When 
the MDE is fully functional, this will enable another authorized user 
to go directly to that LOA for the records rather than initiate a 
second contact with the out-of-State secondary school previously 
attended by the child. This notification in MSIX may be initiated by 
LOA or SEA staff, depending on how the SEA chooses to delegate this 
responsibility. We expect SEAs to monitor compliance with this 
requirement to the same extent that they are expected to monitor all 
other MEP programmatic requirements, and we will provide technical 
assistance and guidance to all SEAs in implementing this new MDE.
    Finally, in response to the commenter who noted that this new MDE 
was not the subject of consultation with the SUGAR group, we note that 
while the Department values the input of this particular group, we are 
not required to consult with one specific group of individuals on all 
MSIX-related matters, including specific MDEs. The NPRM's invitation 
for public comment is a form of consultation, inviting feedback on all 
aspects of these regulations, including the new MDE, from all 
interested parties. We further note that the burden estimates 
associated with this MDE are based on information provided by the eight 
States that responded in March 2012 to the Department's survey of State 
officials. We believe the estimates are reasonable, and do not believe 
MDE 72 adds a significant additional burden to the overall burden 
associated with the currently approved MDEs and these regulations. A 
more detailed discussion of the costs and benefits of these regulations 
is included in the Regulatory Impact Analysis section.
    Changes: None.

Subsequent Data Submissions--End of Term Submissions (Sec.  
200.85(b)(3)(ii))

    Comments: None.
    Discussion: Based on its review of other public comments, the 
Department reevaluated proposed Sec.  200.85(b)(3)(ii)(B), which 
addresses the submission of MDEs at the end of each term for migratory 
children whose eligibility for the MEP expires during the school year. 
We have determined that the proposed requirement for SEAs to submit MDE 
updates and newly available MDEs for any child who continues to receive 
MEP services under section 1304(e) of the ESEA (Continuation of 
Services) after expiration of MEP eligibility, would place an 
unnecessary burden on SEAs to collect and submit this information to 
MSIX.
    Depending on how an SEA chooses to implement the discretionary 
authority in section 1304(e), some formerly eligible migratory children 
may continue to receive services for one additional school year after 
expiration of MEP eligibility, and may continue to receive credit 
accrual services from the MEP through graduation. We did not intend for 
SEAs to be required, as part of their end of term submissions, to 
collect and submit data for all formerly eligible migratory children 
who continue to receive MEP services, beyond the end of the school year 
in which their MEP eligibility expired. Therefore, we have removed from 
Sec.  200.85(b)(3)(ii)(B) the proposed requirement that SEAs submit MDE 
updates and newly available MDEs for all children who continue to 
receive MEP services under section 1304(e) of the ESEA. We continue to 
believe that migratory children whose eligibility expires during the 
school year are best served by having an MSIX Consolidated Student 
Record that contains the child's educational and health information 
through the end of the school year. SEAs will be required to collect 
and submit MDEs through the end of the school year in which the 
migratory child's eligibility expired, but whether the child continues 
to receive MEP services under section 1304(e) is not relevant under 
this requirement.
    Changes: We have revised Sec.  200.85(b)(3)(ii)(B) to remove the 
requirement for SEAs to submit all MDE updates and newly available MDEs 
for any child who continues to receive MEP services under section 
1304(e) of the ESEA after expiration of MEP eligibility.
    Comments: Several commenters stated that SEAs might not be able to 
submit end of term data within 30 calendar days from the end of each 
term (fall, spring, summer, and intersession terms). They cited 
barriers such as: Lack of personnel; LEA staff not being present to 
supply the necessary data during school breaks, or being busy with 
processing student enrollment and withdrawals from their facilities; 
and SEAs' inability to access student data from State student 
databases, due to lack of direct access for MEP staff at the LOA or 
State level or existing State-mandated timelines for LEAs to submit 
data to the State system, and State data validation processes.
    Several commenters also stated that assessment data would be 
particularly difficult for SEAs to collect and submit to MSIX within 30 
calendar days of the end of each term. Commenters noted that the data 
might not be available even to LEAs within 30 days of the end of the 
term because the data is reported and uploaded during the summer 
months. Also, many LEAs aggregate testing and other data on a variety 
of timelines, some set by State requirements, others by local school 
district policies and procedures. One commenter stated that assessment 
data are not available in the State data system until a year or more 
after the test is administered.
    Discussion: We understand that in some locations this requirement 
may require changes to long-standing practices and procedures. For 
example, it may require some SEAs to modify existing staff 
responsibilities and better coordinate with non-MEP LEA and SEA staff 
to ensure the necessary student data can be collected and submitted to 
MSIX in adherence with the regulatory timelines. However, we do not 
believe those challenges warrant an extension of the 30-calendar day 
period because any further extension could have a detrimental impact on 
the ability of local school and MEP staff to have timely access to 
necessary educational and health records of migratory children. For 
example, because the summer term is an opportunity to make up for 
educational interruptions that

[[Page 28958]]

occur due to the migratory lifestyle, it is imperative that MEP and 
other staff have access to a migratory child's educational and health 
information, including assessment data, as soon as possible after the 
end of the regular school year so that they can determine the summer 
services that will best address the child's needs.
    The regulations do not require that all LEAs upload student data 
more frequently to the State's student database. LOAs that are not 
LEAs, or LOAs that do not otherwise have direct access to the necessary 
data, may collect the necessary data directly from LEAs, and submit the 
data to MSIX through another records system (such as a State migrant-
specific database), if such a process would be more efficient or 
practicable for an SEA to meet the regulatory requirement. We will 
provide technical assistance to SEAs and share strategies that have 
worked in some States that have overcome similar barriers to providing 
migratory student data to MSIX.
    In response to the commenters who expressed particular concern that 
LEAs would not have student assessment data within 30 calendar days of 
the end of the term, we intend updated and ``newly available'' MDEs to 
mean that the information has been processed by an LEA, LOA, or other 
responsible party, such as a contractor for the SEA, and could be 
collected by an SEA (or, as applicable, one of its LOAs). We cannot 
reasonably expect the SEA to collect and submit MDEs for data that are 
still being processed, or that are not otherwise accessible to an LEA. 
We note that under separate, existing requirements for title I, part A, 
SEAs must ensure that the results of State academic assessments are 
available to LEAs before the beginning of the next school year (see 
section 1116(a)(2) of the ESEA, as amended by NCLB).
    Changes: None.

Subsequent Data Submissions--Change of Residence Submissions (Sec.  
200.85(b)(3)(iii))

    Comments: Some commenters interpreted Sec.  200.85(b)(3)(iii) to 
require submission of MDEs for a migratory child four days after the 
COE completion date or after the child becomes eligible for MEP 
services. One commenter asked whether the notification referenced in 
the regulations is the same as the move notification in MSIX currently 
utilized by some MSIX users to alert another school district or State 
to which the child has moved or will move, and one commenter described 
challenges posed by that MSIX notification system due to insufficient 
information provided to the district or State to which the child has 
moved or will be moving. One commenter interpreted the change of 
residence notification to require an SEA, within four working days to: 
Locate the child, complete a COE, approve the COE, and submit the 
applicable MDEs to MSIX.
    Several commenters cited as challenges to compliance with the four-
working-day requirement a lack of staff capacity and difficulty in 
obtaining the necessary data from school districts--either because LEAs 
are not staffed in the summer months, or because of the time required 
for school personnel to collect and deliver the necessary information 
to the regional offices to enter in the State database and upload to 
MSIX. Two commenters asked the Department to consider extending the 
four-working-day requirement to 10 days, 15 days, or 14-21 days (14-21 
days would align with the current recommended timelines for SEAs to 
resolve items on their MSIX work lists).
    Discussion: We appreciate the commenters' concerns, but do not 
agree that they warrant a change to the regulatory requirement. In 
response to the commenters' questions and requests for clarification, 
we clarify here the differences in data submission requirements under 
Sec.  200.85(b)(3)(i) for migratory children for whom an SEA has 
approved a new COE, and the data submission requirements under Sec.  
200.85(b)(3)(iii) for migratory children who were previously documented 
as eligible and have changed residence.
    Under Sec.  200.85(b)(3)(i), if an SEA documents a child as newly 
eligible for the MEP (i.e., the SEA approves a new COE for a child 
based on a qualifying move, regardless of whether the SEA has 
previously approved a COE for the same child based on a previous 
qualifying move), the SEA has 10 working days from the date the SEA-
designated reviewer approves the child's COE to submit all applicable 
MDEs for the migratory child for whom an SEA has approved a new COE. 
For children whom an SEA previously documented as eligible for the MEP, 
and for whom the SEA has previously submitted data to MSIX, Sec.  
200.85(b)(3)(iii) requires an SEA to submit to MSIX any MDE updates or 
newly available MDEs for the migratory child within four working days, 
only if the SEA has received notification from MSIX that the child has 
changed residence to another LOA within the same State or another SEA 
has approved a new COE for the child. For example, if a child moves 
from State A to State B, an MSIX user in State B may initiate a move 
notification in MSIX, to request the child's educational and health 
information from State A. Within four working days of receiving such a 
notification in MSIX, State A must upload to MSIX any updated or newly 
available MDEs for the child since State A's last submission of MDEs 
for the child. These regulations do not require State B to initiate the 
move notification in MSIX. The regulations retain the current 
flexibility for MSIX authorized users to send a move notification 
through MSIX to the child's former location, upon determining that the 
child's record is missing data.
    When an SEA receives this type of change-of-residence notification 
from MSIX, the SEA should understand that the notification is an 
indication that the child has already left the district or State, not 
that the child is coming. So, under this regulatory requirement, upon 
receiving notification that the child has changed residence, the SEA 
does not need to locate the child in order to collect needed 
information. Rather, that SEA must submit to MSIX any updates or newly 
available MDEs that have become available to the SEA or one of its LOAs 
since the SEA's last submission to MSIX for that child. Under Sec.  
200.85(b)(iii)(B), if there is no new or updated MDE information to 
submit at the time that the SEA receives the change of residence 
notification, the SEA must enter any new or updated information within 
four working days of when the data does become available to the SEA or 
one of its LOAs. Consistent with the discussion in the Subsequent Data 
Submissions--End of Term Submissions (Sec.  200.85(b)(3)(ii)) section, 
we intend ``newly available'' MDEs to mean that the information has 
been processed by an LEA, LOA, or other responsible party, such as a 
contractor for the SEA, and could be collected by an SEA (or one of its 
LOAs, should the SEA designate this responsibility to its LOAs).
    Some commenters referenced a different type of MSIX notification 
that many MSIX users currently use on a voluntary, as-needed basis. 
This is a notification to alert a receiving school district that a 
migratory child has recently moved to the school district, or will be 
arriving soon. While we encourage use of this notification, at this 
time there is no regulatory requirement for SEAs to initiate such 
advance notifications, nor is there a required timeframe in which SEAs 
that receive such notifications must locate a child in the new school 
district to which the child has moved.
    We understand that to meet these requirements, some SEAs may need 
to

[[Page 28959]]

modify staff responsibilities, processes, and procedures to obtain and 
submit the necessary data within the required timeline. While we 
recognize that four working days is a very short timeframe, MEP and 
school personnel in the migratory child's new State or school district 
need critical information on the child as soon as possible so that they 
can make appropriate decisions regarding school enrollment, grade and 
course placement, accrual of secondary credits, and participation in 
MEP services. The requirement to obtain and submit data within four 
working days was informed by the estimates of time needed for data 
collection, as provided by the group of eight States that responded to 
the Department's survey of State officials. It is essential to keep the 
short timeframe because there is no way to know how many days have 
lapsed between the child's arrival in the new school district and the 
district's initiation of the change of residence notification in MSIX.
    Changes: None.

Use of Consolidated Student Records (Sec.  200.85(c))

    Comments: One commenter asked the Department to specify in the 
final rule that the Consolidated Student Record (referred to in the 
NPRM as Consolidated Migrant Student Record) may be used for grade and 
course placement purposes in conjunction with other local enrollment 
document review procedures and new student assessment procedures.
    One commenter asked the Department to include language in the final 
regulations that State MEP Directors are to encourage teachers and 
guidance counselors to use MSIX. The commenter stated that MSIX is not 
well known by those outside the field of migrant education, including 
teachers and guidance counselors, and emphasized the importance of 
these school personnel knowing the benefits of MSIX and being able to 
use the system, or knowing whom to contact to obtain the necessary 
information contained in MSIX.
    One commenter requested that the Department provide specific 
expectations for SEAs about how they should monitor compliance with the 
requirements in Sec.  200.85(c) for use of Consolidated Student 
Records. One commenter recommended that the Department conduct a 
periodic evaluation of State manuals, training procedures, and SEA 
implementation of the requirements under Sec.  200.85(c).
    Two commenters expressed concerns about the burden associated with 
providing MSIX training to school staff, including issuing and updating 
passwords. One commenter asked the Department to use ``unallocated'' 
State funds to establish procedures, develop and disseminate guidance, 
and provide training in the use of MSIX, to alleviate the burden of 
these requirements for small States.
    Discussion: We appreciate the commenters' concerns, and agree with 
them in part. We recognize the value of one commenter's approach to 
grade and course placement for migratory students, which relies on 
multiple information sources. We fully encourage MSIX users to use a 
child's Consolidated Student Record in conjunction with other data 
sources. The Consolidated Student Record is intended to be a starting 
point for school enrollment, grade and course placement, credit 
accrual, and participation in the MEP; it is not intended to be relied 
upon as the sole source of data for a migratory child. For example, the 
Consolidated Student Record will not contain a migratory child's 
immunization record but, rather, will alert the MSIX user as to whether 
such a record exists. Thus, the Consolidated Student Record is intended 
as a starting point. As a result of these regulations, the information 
it contains will be available in a timely manner, and will direct users 
to where they may obtain other pertinent information in intra- and 
inter-State records.
    We agree with the commenter on the value of informing teachers and 
counselors about, or giving them access to, MSIX. However, we do not 
agree that it is necessary to specifically require MEP State Directors 
(or SEAs) to encourage specific personnel as authorized users of MSIX. 
While we plan to encourage, in subsequent guidance, the use of MSIX by 
those most likely to utilize the system for its intended purposes, 
including school teachers and counselors, Sec.  200.85(c)(3) maintains 
the existing flexibility for SEAs to determine their States' MSIX 
authorized users. We have developed MSIX training materials 
specifically designed for MSIX authorized users, and we encourage SEAs 
to utilize these materials. We will gladly assist SEAs that are 
interested in developing specific procedures, guidance, and training 
for their authorized users, including teachers and counselors.
    In response to the commenter who asked the Department to provide 
specific expectations for SEAs regarding monitoring compliance with the 
regulatory provisions regarding use of the Consolidated Student Record, 
we do not believe it is appropriate or necessary to include such 
expectations in these regulations. However, we will provide technical 
assistance and guidance to assist SEAs with implementation of these 
regulations and share strategies that SEAs may use to monitor LOAs' 
compliance. In response to the commenter's recommendation that the 
Department conduct a periodic evaluation of State manuals, training 
procedures, and SEA implementation requirements under Sec.  200.85(c), 
the Department does not currently have plans to evaluate these specific 
requirements on a national level. We will, however, monitor compliance 
with these requirements on an as-needed basis, and as part of our 
standard monitoring procedures. The Department's MSIX contractors also 
assist with monitoring the implementation of some of the requirements 
contained in the regulations.
    With regard to concerns expressed about the burden associated with 
MSIX training, we clarify that these regulations do not require all 
LEAs in the State to use MSIX, nor do these regulations require all LEA 
staff to be trained as authorized users. The regulations require the 
SEA and its LOAs to use the system, and require the SEA to encourage 
its LEAs that do not receive MEP funds (i.e., LEAs that do not meet the 
definition of an LOA) to use the system. We will provide technical 
assistance to SEAs to make MSIX training as efficient as possible and 
share strategies for how SEAs can encourage use of MSIX by LEAs that do 
not receive MEP funds. We also encourage SEAs to use the materials 
developed by the Department to minimize the burden on States, 
including: A template for a State manual to assist States in developing 
policies and procedures for using MSIX, ensuring data quality, and 
protecting the data; and online training and a training toolkit for 
State officials to use in carrying out training within their States. 
The use of the Department's materials is optional for States, and the 
templates are meant to be supplemented or adapted by SEAs to 
incorporate State-specific information.
    Finally, we wish to clarify what we understand to be the 
commenter's reference to ``unallocated'' State funds: There are no 
``unallocated'' MEP funds. All MEP funds appropriated to the program by 
Congress are allocated to States or to coordination activities 
authorized under section 1308 of the ESEA. The Department allocates up 
to $10 million from the total annual MEP appropriation for coordination 
activities, of which up to $3 million is

[[Page 28960]]

allocated for special consortium incentive grants (CIGs) to SEAs. If 
any of the section 1308 funds allocated for non-CIG coordination 
activities, such as for the MSIX contract, are unexpended after the end 
of the initial 15-month period of availability, these unexpended funds 
are re-allocated to SEAs. If such unexpended funds are re-allocated to 
SEAs in the form of a supplemental formula award, the SEAs may use the 
funds for any allowable MEP activity, including implementation of MSIX. 
As noted in response to other comments, the Department will consult 
with States to determine the feasibility of, in the future, re-
allocating unexpended sections 1308 funds to SEAs in the form of MSIX 
data quality grants, which must be used for MSIX-related purposes as 
opposed to general MEP-related purposes.
    Changes: None.

MSIX Data Quality (Sec.  200.85(d))

    Comments: One commenter stated that larger States have greater 
numbers of data entry staff spread throughout the State (e.g., a large 
State may have 20-30 data specialists working in various locations), 
and the accuracy of data varies among these locations.
    Discussion: We understand that States with greater numbers of data 
entry staff face greater costs associated with training and measures to 
ensure consistent data quality for their student records systems. 
Because the authoritative source of MSIX data is each State's student 
records systems, the more accurate and complete the data is in such 
systems, the more accurate and complete the data will be in MSIX. We 
plan to prepare guidance and offer technical assistance that recommends 
reasonable and appropriate methods (e.g., running data quality reports 
in MSIX) that SEAs and their LOAs may use to ensure that all data 
submitted to MSIX are accurate and complete. While we understand the 
challenges and increased costs and burden associated with training more 
staff and monitoring greater amounts of data, we expect all SEAs to 
implement procedures that ensure that the data uploaded to MSIX are 
accurate and complete. Setting a lower standard would undermine the 
purpose of MSIX and negatively impact the intended beneficiaries of the 
system--migratory children.
    Changes: None.

Procedures for MSIX Data Correction by Parents, Guardians, and 
Migratory Children (Sec.  200.85(e))

    Comments: Several commenters stated that the required timeframes 
for responses to data correction requests are inadequate or 
unreasonable, citing a lack of staff and difficulty communicating with 
migratory parents who commenters state are pre-literate, do not have 
access to electronic communication, or speak a language in which MEP 
staff are unable to fluently converse. One commenter asked the 
Department to advise SEAs on how to communicate the data correction 
process to such parents and guardians.
    One commenter stated that an SEA might not be able to submit the 
revised data to MSIX within four working days of its decision to revise 
the data because some of the data transmitted to MSIX may come from 
other, non-migrant State data systems and must first be revised in 
those systems--creating a possible need for multiple data transfers. 
The commenter suggested that the Department revise the requirement to 
allow an SEA to submit the revised data to MSIX within 10 working days 
of the data being revised in the State's data system. One commenter 
stated that SEAs may have difficulty responding within 10 working days 
to data correction requests received from the Department if such 
requests are received while districts are closed for holidays or school 
breaks.
    One commenter cautioned about the burden imposed on the SEA by the 
requirements in Sec.  200.85(e), in terms of tracking and responding to 
data correction requests, depending on the volume of requests received.
    One commenter asked about the process to be followed for data 
correction requests--specifically, the process for corroborating or 
validating the record correction request made by a parent, guardian, or 
migratory child. The commenter also asked whether there would be a 
process for districts or SEAs to appeal the request. One commenter 
recommended that the Department provide guidelines to help SEAs design 
procedures for migratory families to request a correction of MSIX data 
and that the Department review those State procedures.
    Two commenters asked the Department to specify in the final 
regulations that: SEAs must have easily accessible and translated 
information for parents, guardians, and migratory children that informs 
them of the data correction process and how to submit a request, and 
specifies that a correction request can be made in a language other 
than English; and the SEA's response must be in an accessible and 
uniform format that the requestor can understand. One commenter listed 
several existing Federal laws and policies that protect students and 
families from discrimination on the basis of national origin, and asked 
the Department to include specific requirements in the MSIX regulations 
to clarify that Federal civil rights laws preempt any State and local 
enactments to the contrary.
    Discussion: We understand that the timeframes set forth under these 
regulations will require changes to current practices and procedures. 
SEAs are expected to make necessary adjustments to ensure that these 
requirements are met--for example, modifying staff responsibilities; 
identifying resources to overcome language or other communication 
barriers; and ensuring that staff are available to respond to data 
requests even when school is not in session. We also note that while 
SEAs and LOAs will need to address difficulties in communicating with 
parents, they already do so in other MEP contexts, including when 
conducting the initial interview with the family to determine a child's 
eligibility for the MEP.
    In response to the comment about potential delays between the 
decision to correct MSIX data and the need first to correct data in 
other State data systems, as well as the possible need for multiple 
data transfers, we recognize that the regulations will require efforts 
on the part of MEP and non-MEP staff at the SEA, LOA, and LEA levels to 
coordinate and possibly revise existing data correction procedures that 
apply to the State's student databases. We decline to expand the 
timeframe for submitting data corrections from these other systems, as 
commenters recommended, because the four-working-day timeframe is 
intended to expedite the period between an SEA's decision to revise 
data and the revised data being populated in the State's records 
systems (for subsequent upload to MSIX). Allowing an SEA to submit data 
to MSIX within 10 working days of the corrected data being entered in 
the State's records systems would, absent additional regulatory 
requirements, essentially allow SEAs an unlimited amount of time 
between making the decision to revise data and entering the revisions 
in their State data system, thus further delaying the transmission of 
the necessary data to MSIX. While we recognize the challenges SEAs may 
face in revising existing processes or procedures, including processes 
or procedures that are not solely within the control of SEA staff 
administering the MEP, we firmly believe that the requirements are 
necessary to ensure that migratory children's records are accurate, up-
to-date, and available in a timely manner to school and project staff 
who need them.

[[Page 28961]]

    In response to the comment about burdens associated with tracking 
data-correction requests, we note that the SEA has similar record-
keeping responsibilities under other Federal and non-Federal programs 
(e.g., the record retention requirements contained in 2 CFR 200.333, 
part of the Uniform Administrative Requirements), and the SEA should 
already have an efficient record-keeping system that can be extended to 
this particular requirement. Based on responses to the Department 
survey of States mentioned previously, we estimated that on average 
each SEA will receive one data correction request annually. If an SEA 
receives a substantially larger number of data correction requests, 
this might indicate a problem with data quality controls.
    Section 200.85(e) does not require SEAs to implement specific data-
correction request procedures with respect to issues such as how 
requests must be made and how an SEA will decide whether to revise the 
data as requested. Thus, each SEA may determine the methods it will 
employ to receive such requests, how it will investigate requests, and 
whether and how appeals may be made. The regulations instead require 
SEAs to respond within specific timeframes (30 calendar days of receipt 
of the correction request), and require an SEA's written procedures to 
include minimum action steps (e.g., send a written or electronic 
acknowledgement to parent/guardian/child requestor and investigate the 
request). We plan to provide technical assistance and guidance to 
assist SEAs in developing their written procedures, and our program 
monitoring will include monitoring of these regulatory requirements.
    We agree with the commenters that information about data correction 
procedures must be communicated in a format and language that is 
accessible to parents, guardians, and migratory children, including 
those whose primary language is not English. We will consider providing 
technical assistance and guidance to SEAs that experience difficulties 
in communicating with parents. At the same time, we urge those with 
such concerns to utilize the SEA's existing procedures and resources, 
as the requirement to communicate with parents in accessible formats 
and in a language they understand is not a new requirement, but one 
that has applied to administration of the MEP for years. Section 
1304(c)(3)(B) of the ESEA provides that each SEA desiring MEP funds 
must provide an assurance that ``. . . all such programs and projects 
are carried out . . . in a format and language understandable to the 
parents.'' Because these regulations would be part of the overall MEP 
requirements, we believe that State responses to MSIX data correction 
requests would be one of the activities in carrying out MEP programs 
and projects, and therefore would need to be carried out in a format 
and language understandable to requesters (parents, guardians, and 
migratory children). As statutory requirements of the MEP, these 
Federal requirements, like any others, supersede any conflicting State 
or local laws.
    Finally, we do not think it is necessary for the MSIX regulations 
to reiterate other applicable non-MEP Federal requirements. Those other 
requirements, including applicable Federal civil rights laws, already 
apply to the MEP and implementation of MSIX.
    Changes: None.

MSIX Data Protection (Sec.  200.85(f))

    Comments: One commenter expressed concerns with the requirements 
for protection of MSIX data. The commenter expressed concerns about the 
burden associated with the requirement in Sec.  200.85(f)(2) that SEAs 
establish and implement written procedures to protect records, and 
recommended that the Department write the necessary procedures. The 
commenter also expressed concerns about the requirement in Sec.  
200.85(f)(4) that SEAs maintain documentation identifying MSIX users 
and the authorizing supervisors, suggesting that MSIX be configured to 
maintain this documentation rather than impose this burden on SEAs.
    Two commenters recommended adding to the types of authorized users 
permitted access by SEAs, which as proposed in the NPRM under Sec.  
200.85(f)(2)(i) include authorized users at the SEA, its LOAs, and LEAs 
in the State that are not LOAs but where a migratory child has 
enrolled. One commenter recommended that the types of authorized users 
be broadened, in the interest of including individuals who serve out-
of-school youth, but who are not SEA, LOA, or LEA personnel.
    One commenter expressed support for the requirements for data 
protection, and opposed granting access to MSIX data and records to 
parties, such as other agencies and government bodies, other than the 
authorized users from entities listed under proposed Sec.  
200.85(f)(2)(i). On the other hand, the commenter recommended that the 
Department consider developing a procedure for parents, guardians, and 
current or former migratory children to access a child's MSIX record 
without needing to be granted access to the MSIX system as an 
authorized user, via the creation of a simple, uniform record request 
form, available both in paper and online. The commenter further 
proposed that such a request form be used to produce two possible 
versions of MSIX records (one more limited than the other), citing the 
benefits of such a process for college applications, job applications, 
and applications for Deferred Action for Childhood Arrivals.
    Discussion: In response to the commenter's concerns regarding the 
cost and burden associated with the written procedures required by 
Sec.  200.85(f)(2), we note that the regulations do not prescribe a 
single set of procedures for all States. Rather, they allow each SEA 
the flexibility to design their own State-specific procedures. We have 
considered ways to alleviate the burden of writing the required 
procedures, and have developed templates as well as online training and 
training toolkits for State officials to use. We plan to provide 
technical assistance to States in utilizing these resources.
    In response to the same commenter's recommendation that MSIX 
maintain the necessary documentation on authorized users required of 
SEAs under Sec.  200.85(f)(4), we will explore the feasibility of 
having MSIX generate and maintain this documentation. At this time, the 
system does not contain this functionality, so we will not now revise 
Sec.  200.85(f)(4) to eliminate the SEA's responsibility to maintain 
this documentation. We also note that, although the Department has 
developed and disseminated an OMB-approved MSIX User Application Form 
(OMB Control Number 1810-0686), the regulations do not require SEAs to 
use this form as long as they maintain documentation that contains the 
information reflected on the OMB-approved form.
    We also do not agree that it is appropriate at this time to broaden 
the types of MSIX authorized users to allow SEAs to permit access 
beyond those users at the SEA, LOA, or non-MEP funded LEA levels. 
However, we recognize that there may be benefits to migratory children 
in allowing certain non-SEA, LOA, or LEA users, including parents, 
guardians, and current or former migratory children, to access MSIX. 
The Department will examine the MSIX system of records notice, 
published in the Federal Register under the Privacy Act on December 5, 
2007 (72 FR 68572), to consider the costs, benefits, and feasibility of 
authorizing additional groups of users. Consultation

[[Page 28962]]

with States, and further study, are needed to assess the potential 
risks and benefits of broadening the types of authorized users, while 
ensuring that the system is still being used only for its limited 
purposes and also affording the maximum benefits to migratory children.
    In response to the recommendation for a uniform records request 
form for parents, guardians, and current and former migratory children 
to gain access to a child's MSIX record without being granted access to 
MSIX as an authorized user, we recognize the benefits of enabling 
parents, guardians, and former and current migratory children to access 
their MSIX records. However, we believe there are sufficient procedures 
in place to allow parents, guardians, and migratory children to request 
a copy of the child's MSIX record. Currently, each LOA and SEA, as well 
as the Department, has its own procedures for providing migratory 
children (and parents or guardians of migratory children) a copy of a 
child's MSIX record. For example, in order to request a copy of the 
MSIX record from the Department, a requestor must contact the Office of 
Migrant Education.\4\ We encourage migratory children and parents to 
request such records at the LOA or SEA level prior to submitting such a 
request to the Department. In addition, we will consider developing 
more detailed guidance for LOAs and SEAs to make the process for 
parents, guardians, and migratory students themselves to request the 
MSIX record as straightforward and user-friendly as possible.
---------------------------------------------------------------------------

    \4\ OME may be contacted at: U.S. Department of Education, 
Office of Migrant Education, 400 Maryland Avenue SW., Washington, DC 
20202. Phone: (202) 260-1164. Email: msix@ed.gov.
---------------------------------------------------------------------------

    Changes: None.
    Comments: One commenter requested the Department to reconsider the 
current MSIX security measure that blocks MSIX access for authorized 
users after a 30-day period of inactivity. The commenter was concerned 
that MSIX authorized users in school districts where migratory children 
do not enroll regularly will face delays in reactivating access to the 
system when needed.
    Discussion: We appreciate the commenter's recommendation and will 
look into this matter. However, the comment is outside the scope of our 
proposed regulations.
    Changes: None.

Regulatory Impact: Costs and Burden Associated With the Regulations

    Comments: Several commenters expressed concerns about the costs and 
burden associated with the implementation of the regulations. One 
commenter acknowledged the benefit of creating a uniform system for the 
transfer of educational records between school districts, but stated 
that the costs to SEAs estimated in the NPRM seem too low. The same 
commenter questioned the lack of data to show how the regulations will 
directly benefit migratory students academically. One commenter stated 
that the costs to small States (which we understand to mean States with 
relatively smaller numbers of migratory children or relatively small 
annual awards of MEP funds) of implementing these regulations could 
jeopardize the sustainability of the MEP in those States. One commenter 
asked the Department to state the amount of funds it plans to allocate 
to SEAs for planning, implementation, and recurring annual costs of the 
system; and further requested that, in allocating such funding to SEAs, 
the Department consider the varying costs of personnel services. One 
commenter suggested a less costly alternative approach would be to 
improve the existing records systems currently used by States.
    Discussion: We appreciate the commenters' concerns and 
recommendations, and agree with them in part. In response to the 
commenter that stated that the estimated costs to SEAs in the NPRM 
seemed too low, we note that the commenter did not propose a more 
accurate cost estimate. We have developed the cost estimates based upon 
consultation with stakeholders, and believe them to be reasonable. We 
acknowledge that estimates will not be an exact reflection of actual 
costs borne by each SEA. We are updating the cost and burden estimates 
to reflect the most current data we have available.
    While it is difficult to quantify the benefits of these 
regulations, including specific academic benefits to migratory 
children, they will provide important benefits to migratory children 
and their families and to States and LOAs, as discussed in more detail 
in the Regulatory Impact Analysis section of this document. We issue 
these regulations on a reasoned determination that they reflect the 
best way to implement State responsibilities under section 1308(b) of 
the ESEA, and that the benefits of these regulations will justify their 
costs. In response to the commenter concerned about the effect of 
implementation costs on small States, and the commenter that asked the 
Department to state the amount of funds it plans to allocate to SEAs, 
we plan to assist States in implementing these regulations through 
additional technical assistance, guidance, and other resources to 
alleviate the costs and other burdens imposed on SEAs. In addition, we 
will consider the feasibility of providing additional funds to SEAs 
specifically for MSIX implementation purposes, following consultation 
with MEP grantees. During this consultation process, we will consider 
information provided by SEAs on the varying additional costs expected 
as a result of these regulations.
    In response to the commenter who recommended the improvement of 
existing State records systems as a less costly alternative to the 
requirements contained in these regulations, we are confident that the 
approach reflected in these regulations will maximize net benefits to 
migratory children. We encourage all SEAs to improve their existing 
records systems in order to ensure data quality, and to maximize the 
benefits to the migratory children whose records are contained in such 
systems. However, we do not believe that the improvement of individual 
State systems is an acceptable substitute for the use of MSIX, as 
provided in these regulations, because MSIX has several unique 
functions that cannot be realized by individual State systems. Among 
these unique functions are the consolidation of both intra- and inter-
State data into a single Consolidated Student Record; identification of 
near-matches (i.e., the system identifies possible duplicate records, 
which are automatically added to ``worklists'' for the SEA to resolve) 
from a national pool of migratory children; and timely access to such 
records anywhere in the Nation.
    Changes: We have changed the cost and burden estimates to reflect 
the most up-to-date data. Updated cost and burden estimates are found 
in the Regulatory Impact Analysis section of the preamble.

Clarity of the Regulations

    Comments: One commenter responded to the six bulleted questions 
regarding clarity of the regulations, found on page 79234 of the NPRM. 
The commenter stated that the requirements in the proposed regulations 
were not written in plain language, and those regulations contained 
technical terms or other wording that interferes with their clarity. 
The commenter suggested that the Department include a glossary or 
synopsis understandable to a layperson. The commenter stated that the 
format of the regulations reduces their clarity, and could be improved 
by use of shorter sections, spacing, bullets, tables, and charts. For 
the SUPPLEMENTARY INFORMATION section of the preamble, the commenter 
suggested an outline of the

[[Page 28963]]

proposed changes, including a synopsis of each change; and bulleted 
information. Finally, the commenter suggested that the Department could 
expect to receive more public comments if the information were 
presented in a clearer format, recommending: A numbered table of 
proposed changes; a brief description of the proposed changes and the 
timeframe with a reference to the pages in which the information may be 
found; full pages rather than columns; spaces between sections; and 
tables, charts, diagrams, and a table of contents.
    Discussion: We appreciate the commenter's suggestions to improve 
the clarity of the regulations, and have made every effort to use plain 
language and present the information clearly in these final 
regulations. We are required to use a specific format for Federal 
Register documents, so some of the commenter's suggestions, while 
helpful, are simply not feasible. We will keep the commenter's 
suggestions in mind for technical assistance and guidance documents 
that follow publication of the final regulations.
    Changes: None.

Paperwork Reduction Act: Costs and Burden Associated With Information 
Collection

    Comments: Four commenters addressed the information collection 
associated with these regulations in response to the NPRM. Because 
those four comments were submitted in the NPRM public comment period, 
we summarize and respond to those four comments here. The Department 
received four additional comments regarding the information collection, 
but those comments were submitted in the ICN public comment period for 
the 72 MDEs, which was filed under a separate docket. In accordance 
with PRA procedures, those four comments submitted in the ICN public 
comment period will be addressed separately, in the Department's 
correspondence with OMB.
    One commenter expressed support for the information collection 
requirements associated with the regulations, stating that the 
administrative costs and burden are outweighed by the benefits to 
migratory children.
    In response to our statement in the ICR Supporting Statement that 
there should be no additional record-keeping costs beyond those covered 
under customary and usual business practices, one commenter contended 
that these record-keeping costs are a strain for small States with 
limited funds (particularly for States that have had an increase in 
numbers of migratory children without a correlating increase in their 
grant award). Thus, the commenter asserted that, although the 
regulations might minimize the burden for larger States, they do not do 
so for small States. One commenter acknowledged that aspects of the 
proposed collection are necessary and practical, but objected to the 
timeframes required by the regulations. The commenter stated that the 
burden estimates and methodology appear to be sound for larger States, 
but the needs and realities of smaller States with fewer funds are not 
addressed. The commenter stated that the information collection would, 
in theory, enhance the quality, usefulness, and clarity of the 
information collected by the Department, but alternative models would 
be less burdensome for certain States. (We note that the commenter did 
not elaborate on the specifics of such alternative models.)
    One commenter expressed concern that collecting information for 
additional MSIX data fields needed for child count or other reporting 
requirements would impose unnecessary fiscal and labor burdens for 
States because States would need to fund the process for matching and/
or converting data elements from their State student information system 
to MSIX. The commenter asserted that the collection of such information 
is not reasonable and necessary because States already have a 
legitimate, widely acceptable system to provide data to the Department.
    Discussion: The Department appreciates the support expressed for 
the information collection requirements associated with these 
regulations. We believe that the benefits of the regulations will 
outweigh the incremental costs that States, including small States, 
will incur as a result. We note that these requirements stem from our 
statutory responsibility in section 1308(b) of the ESEA, and are based 
in large part on our prior consultation with stakeholders, including 
those from smaller States. We also note that the information collection 
requirements mandate the data elements that States must collect and 
maintain, but we do not regulate on the specific methodology that each 
State must use to collect the necessary data or the systems that States 
use. Large and small States alike are encouraged to use systems and 
methods for data collection and record-keeping that they find to be 
most efficient and cost-effective. We will continue to provide 
technical assistance and guidance to all States in identifying the most 
efficient and cost-effective methods for data collection, and 
facilitate interstate coordination to allow States to share best 
practices with one another.
    In response to the commenter who expressed concerns about the 
collection of information in MSIX through additional data fields 
necessary for child count or other reporting purposes, we note that we 
are not requiring any additional data elements at this time other than 
MDE 72, the Out-of-State Records Flag, which indicates whether or not 
one of the State's LOAs have received secondary school records from 
another State for the secondary school-aged migratory child for whom an 
SEA has approved a new COE. The information needed for child counts and 
producing national data on the migratory population is currently 
collected by States under the ICRs for the Department's EDFacts and 
CSPR, and based on requirements for the MEP COE and in related 
regulations. As for other data elements, the process for matching and/
or converting data elements from State systems to MSIX, and the 
associated costs and burden, will be a one-time cost and, other than 
the new MDE 72, will only apply to the 23 States that have not already 
undergone such linkage as of June 2015 for all MDEs. Please see the 
discussion in the Alternative Methods for Collecting and Reporting Data 
section for the Department's rationale for utilizing MSIX to generate a 
child count and produce national data on the migratory population. We 
address comments with respect to the timeframes for collecting the 
required MSIX data in the MSIX Data Submission Requirements--General 
Timelines (Sec.  200.85(b)(1)) section.
    Changes: None.

Executive Orders 12866 and 13563

Regulatory Impact Analysis

    Under Executive Order 12866, the Secretary must determine whether 
this regulatory action is ``significant'' and, therefore, subject to 
the requirements of the Executive order and subject to review by the 
Office of Management and Budget (OMB). Section 3(f) of Executive Order 
12866 defines a ``significant regulatory action'' as an action likely 
to result in a rule that may--
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);

[[Page 28964]]

    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive order.
    This final regulatory action is a significant regulatory action 
subject to review by OMB under section 3(f) of Executive Order 12866.
    We have also reviewed these regulations under Executive Order 
13563, which supplements and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866. To the extent permitted by law, Executive Order 
13563 requires that an agency--
    (1) Propose or adopt regulations only on a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things and to the extent practicable--the costs of 
cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and
    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' The Office of 
Information and Regulatory Affairs of OMB has emphasized that these 
techniques may include ``identifying changing future compliance costs 
that might result from technological innovation or anticipated 
behavioral changes.''
    We are issuing these final regulations only on a reasoned 
determination that their benefits justify their costs. In choosing 
among alternative regulatory approaches, we selected those approaches 
that maximize net benefits. Based on the analysis that follows, the 
Department believes that these regulations are consistent with the 
principles in Executive Order 13563.
    We also have determined that this regulatory action does not unduly 
interfere with State, local, or tribal governments in the exercise of 
their governmental functions.
    In accordance with both Executive orders, the Department has 
assessed the potential costs and benefits, both quantitative and 
qualitative, of this regulatory action. The potential costs associated 
with this regulatory action are those resulting from statutory 
requirements and those we have determined as necessary for 
administering the Department's programs and activities.
    In this regulatory impact analysis we discuss the need for 
regulatory action, and the potential costs and benefits. The need for 
this regulatory action is based on statutory requirements that SEAs 
provide for educational continuity through the timely transfer of 
pertinent school records when migratory children move from one school 
to another, regardless of whether such move occurs during the regular 
school year (see section 1304(b)(3) of the ESEA), as well as the 
statutory requirements that the Secretary: (a) Assist States in the 
electronic transfer of student records, and (b) ensure the linkage of 
migrant student records systems for the purpose of electronically 
exchanging, among the States, health and educational information 
regarding all migratory students (see section 1308(b) of the ESEA). We 
have used the most up-to-date data available to estimate the burden of 
these regulations on SEAs and have considered ways to alleviate this 
burden. We have concluded that the costs of these regulations are 
outweighed by the benefits to migratory children of having up-to-date 
educational and health information for all migratory children available 
on a timely basis in order to facilitate school enrollment, grade and 
course placement, credit accrual, and participation in the MEP.

Need for Regulatory Action

    The Secretary believes that the regulations are necessary for the 
Department to effectively implement the requirement in section 1308(b) 
of the ESEA that the Secretary ensure the linkage of migrant student 
record systems and for the effective implementation of the MEP by 
States and LOAs serving migratory children. This congressionally 
mandated records transfer system will help SEAs, LEAs, and LOAs meet 
the needs of migratory children by having complete, accurate, and up-
to-date educational and health information immediately available to 
school and program staff where migratory children enroll after they 
move.
    Until now, all but one State receiving MEP funds has voluntarily 
entered some MDEs into MSIX. However, there is not consistency in the 
timeframes within which States enter these data, or in the completeness 
of data that each State enters for its migratory children. These 
regulations establish basic rules governing the collection of MDEs that 
States receiving MEP funds will need to submit to MSIX, so that when 
migratory children move and enroll in new schools and programs, staff 
in those schools and programs may make timely and appropriate decisions 
to facilitate school enrollment, grade and course placement, accrual of 
secondary course credits, and participation in the MEP.
    Under the regulations, States receiving MEP funds will need to 
provide three categories of MDEs: (1) Core data elements (which include 
demographic and enrollment data), (2) assessment data, and (3) course 
history data (which under the regulations pertain only to secondary 
school-aged children).

Potential Costs and Benefits

    We have updated the cost and burden estimates contained in this 
section to reflect the availability of more up-to-date data from MSIX, 
CSPRs, and the U.S. Bureau of Labor Statistics National Compensation 
Survey: Occupational Earnings in the United States. As described in the 
following paragraphs, the Department estimates that the total cost to 
participating SEAs of implementing these regulations is approximately 
$17,363,639 for the first year, and $16,431,718 annually thereafter. 
The estimated burden per migratory child, amortized over three years, 
is approximately one hour and 30 minutes, at an approximate cost of 
$46.50 per year. These estimates cover all regulatory requirements, 
including the costs of information collection activities, which are 
discussed separately under the heading Paperwork Reduction Act of 1995. 
Estimates are based on the initial three-year period for which we 
anticipate OMB will approve the information collection associated with 
these regulations.
    As of July 2015, of the 47 States that currently receive MEP funds: 
27 States have provided complete start-up submissions for all MDEs; 19 
States have provided partial start-up

[[Page 28965]]

submissions; and one State has not provided any data to MSIX. Three of 
the 50 States (not including the District of Columbia, the Commonwealth 
of Puerto Rico, or the outlying areas) do not currently receive MEP 
funds or identify migratory children, and MDEs for migratory children 
in those States are not being updated in MSIX. Although 47 States 
currently receive MEP funds, our burden estimates are based on 50 
States, in order to account for possible burden increases should all 
three of the currently non-participating States choose to participate 
in the MEP during the first three years that the regulations become 
effective. We do not anticipate that the District of Columbia, the 
Commonwealth of Puerto Rico, or the outlying areas will participate in 
the MEP in the first three years that the regulations become effective, 
given that none of these entities have participated in the MEP in the 
previous decade. Basing the estimate on 50 States is consistent with 
the NPRM. The first-year estimate excludes start-up costs that have 
already been incurred by participating SEAs since MSIX began operating 
in 2007, as well as costs for using records, data quality, data 
protection, and data correction (activities required under Sec.  
200.85(c)-(f)) for those 27 States that have provided complete start-up 
submissions.
    These costs will not all be borne by the States and their LOAs; the 
Department provides both monetary and non-monetary resources to assist 
States in implementing MSIX activities successfully. For example, in 
2007, the Department paid contractors to work with States to develop 
system interfaces that connect State data systems housing migrant 
student data to MSIX. In 2008 and 2010, the Department provided funding 
to States under the MSIX Data Quality grant program that could be used 
for developing these interfaces, improving the quality of migrant 
student data, and developing and implementing procedures for submitting 
data to MSIX. Pending consultation with States, the Department may 
provide similar resources in the future to assist in the implementation 
of these regulations. In addition, the Department has provided 
extensive technical assistance to States on issues of data quality and 
security, most recently to 23 States through the MSIX Data Quality 
Initiative (DQI), but also through the State Longitudinal Data System 
program and as part of the implementation of the EDFacts system. Each 
of these activities reduced the costs of implementing these 
regulations. Further, and most importantly, States may use MEP funds to 
cover the costs associated with implementing the regulations (albeit 
with the result that funding is then unavailable for other MEP 
activities). A more detailed discussion of the costs of each regulatory 
requirement follows.
    To help calculate the time estimates associated with the data 
submission requirements, the Department used the median number of 
minutes provided in March 2012 by officials in eight of the nine States 
with varying numbers of migratory children surveyed regarding the time 
it takes them to collect and enter these data in their State data 
systems. Estimates of the numbers of migratory children for whom States 
will submit information to MSIX were derived from CSPRs for the 2013-
2014 performance period and include the number of migratory children 
ages 0-21 that States reported as MEP-eligible in performance period 
2013-2014 (364,227); the number of MEP-eligible K-12 children enrolled 
in school (269,538); the number of MEP-eligible secondary school 
students (76,008); and the number of MEP-eligible students reported as 
having taken State assessments (78,865). The hourly cost used for these 
estimates was $35.67, the mean hourly earnings for State and local 
government management, professional, and related occupations reported 
in June 2015 by the U.S. Bureau of Labor Statistics in its National 
Compensation Survey: Occupational Earnings in the United States.
    We estimate that the one-time cost for providing start-up 
submissions to MSIX under Sec.  200.85(b)(2), excluding costs that were 
incurred by States before these regulations, is approximately $324,685.
    That figure assumes that State and local officials take 
approximately 53 minutes per migratory child to collect, enter into the 
State data system, and submit to MSIX general demographic and 
enrollment MDEs that pertain to all migratory children who have been 
documented by the State as MEP-eligible; approximately 5 minutes per 
student for the MDEs pertaining only to migratory students who 
participate in State assessments; and approximately 55 minutes per 
student for the course history MDEs pertaining only to migratory 
secondary school students. Although we expect that the aforementioned 
revision made in these final requirements for start-up data submissions 
will reduce burden for States compared to the proposed requirements, 
the burden estimates are, consistent with the NPRM, based on the 
numbers of eligible migratory children reported by States in the CSPR. 
States report the number of eligible migratory children who resided in 
their State for at least one day during the entire performance period, 
rather than the number of eligible migratory children that resided in 
their State on a specific date. Therefore, the burden estimates for 
start-up submissions are likely to be over-estimates, but we believe 
this is preferable to under-estimating the burden.
    We estimate that the annual costs for complying with Sec.  
200.85(b)(3), which covers subsequent submissions to MSIX of data on 
migratory children for whom an SEA has approved a new COE, updates to 
MSIX at the end of every school term, and updates to MSIX if a 
receiving State or LOA notifies a sending State or LOA that a migratory 
child has moved, will be approximately $16,196,509.
    Within that estimate, we estimate the annual costs of implementing 
the requirements under Sec.  200.85(b)(3)(i), covering collection and 
submission of data to MSIX for migratory children for whom an SEA has 
approved a new COE, at $6,717,174. We estimate the annual number of 
migratory children for whom an SEA has approved a new COE to be 
115,415, based on the number of qualifying moves for migratory children 
that States reported to the Department in section 2.3.1.5 of the CSPR 
for school year 2013-2014. The number of migratory children for whom an 
SEA has approved a new COE and for whom there will be MDEs pertaining 
to assessment data (24,990) and secondary schooling (22,753) is based 
on the proportion of those students in the population of migratory 
children enrolled in grades K-12 during school year 2013-2014. We 
assume the same time estimates used for calculating burden for 
collecting and submitting data for start-up submissions as are assumed 
for the calculations of other proposed data submission requirements 
under Sec.  200.85(b)(2). Based on responses to the Department's survey 
of States discussed above, we also estimate an additional effort of 1 
hour and 10 minutes per student to collect data elements for a 
secondary student who previously attended another secondary school in 
the same State (Sec.  200.85(b)(3)(i)(B)(1)) and another 42 minutes to 
determine if, and notify MSIX when, a LOA has received secondary school 
records from out of State for a secondary school-aged migratory child 
for whom an SEA has approved a new COE (Sec.  200.85(b)(3)(i)(B)(2)).
    The cost estimate for implementing the requirements under Sec.  
200.85(b)(3)(ii), end of term submissions, is $9,312,332. The estimate 
assumes that States update

[[Page 28966]]

MDEs for every migratory child once over the course of each year for 
most, but not all, of the MDEs pertaining to all migratory children, 
and that the effort will take approximately 42 minutes per migratory 
child. This estimated burden, based on the experience of Department 
staff who have worked on migrant programs at the State level, also 
assumes a smaller burden for this effort than that for start-up data 
submissions because some States have developed automated processes for 
collecting this information and providing these updates to MSIX.
    Many of the MDEs in a migratory student's record must be updated 
every year; for example, when a student finishes a grade level, the 
student must be marked as ``withdrawn'' from that grade, and when the 
student enters the following grade the next school year the student is 
then marked as ``enrolled'' in the new grade. Indeed, States may update 
a student's MSIX record throughout the school year, but will likely 
need to do so only once a year. There are a smaller number of MDEs, 
such as birth city, that would not require an update. The end of term 
cost estimate assumes that States will need five minutes per affected 
student for the MDEs pertaining to State assessments, as those 
assessments are administered once a year. The Department's estimate 
also assumes 55 minutes per migratory student for the MDEs pertaining 
only to migratory secondary school students, in accordance with the 
surveyed States' estimated average burden for MDEs for secondary school 
students regardless of the number of courses in which secondary school 
students were enrolled.
    The estimate for the annual costs of implementing the requirements 
under Sec.  200.85(b)(3)(iii), change of residence submissions, is 
approximately $167,002. This estimate is based on the 2,497 requests 
that receiving States or LOAs (i.e., States or LOAs where migratory 
children moved) made through MSIX in the 2013-2014 school year to 
request records from sending States or LOAs (i.e., a child's previous 
place of enrollment). Apart from the end of term data submission 
requirements, the regulations require a sending State to update a 
student record only if it receives notification from a receiving State 
or LOA through MSIX that it has enrolled a migratory child formerly 
enrolled in the sending State. However, the regulations do not require 
receiving States (or their LOAs) to notify the migratory child's former 
location that the migratory child has changed residence. This allows a 
State or LOA enrolling a migratory child flexibility to send a 
notification (through MSIX) to a child's former location, requesting an 
updated student record, only if the child's MSIX record is missing 
data.
    Furthermore, Sec.  200.85(b)(3)(ii) requires SEAs to update MSIX 
MDEs at the end of each term; therefore, States and LOAs are more 
likely to use MSIX to request records from a previous location under 
Sec.  200.85(b)(3)(iii) for children moving in the middle of the term. 
An analysis of MSIX data on the timing of migratory child moves during 
school year 2013-2014 showed that approximately 59 percent of the moves 
occurred during the summer months, after the end of the school year. 
Including January moves, 65 percent of all moves occur between terms, 
which should limit the number of data submissions required under the 
change of residence provision in Sec.  200.85(b)(3)(iii).
    The estimate for the total costs of implementing the requirements 
under Sec.  200.85(c), using Consolidated Student Records contained in 
MSIX; Sec.  200.85(d), establishing rules pertaining to the quality of 
data submitted to MSIX; and Sec.  200.85(f), establishing rules 
pertaining to the protection of data submitted to MSIX, is 
approximately $841,309 for the first year and $234,072 for each 
subsequent year. The main costs for implementing these requirements are 
associated with the time that will be needed for States to establish 
policies and procedures to address the use of MSIX, data quality, and 
data protection; develop and disseminate the guidance and procedures to 
State and local personnel; and provide training to State and local 
personnel who have access to MSIX. Many of these costs will be one-time 
costs.
    To minimize the burden on States of implementing these 
requirements, the Department developed a template for a State manual 
that we believe will assist States in developing policies and 
procedures for using MSIX, ensuring data quality, and protecting the 
data. The Department also developed online training and a training 
toolkit that State officials may choose to use in carrying out training 
within their States. Based on the experience of Department staff who 
have worked on migrant programs at the State level, we estimate that 
each State will spend approximately 120 hours developing policies and 
procedures with the aid of the template. Using the same cost per hour 
used for the data submission requirements, the total one-time cost of 
establishing policies and procedures will be an estimated $59,926. To 
calculate the costs of training State and local personnel in the use of 
MSIX and associated policies and procedures, we estimate 3.5 person-
hours per State for using the Department's training toolkit to develop 
and conduct training for MSIX users--up to 4 training of trainer 
sessions plus each MSIX user spending 2 hours completing training. We 
estimate 3,525 individuals will complete training during year 1 and 
approximately 370 additional individuals will complete training each 
subsequent year. This estimate is based on 2,820 current active users, 
which is expected to increase by 25 percent during the first year these 
regulations are implemented and by 10 percent for each of the following 
two years. Based on the same cost per hour used for the data submission 
requirements, the total training cost is an estimated $276,443 for the 
first year and $51,374 each subsequent year.
    In addition, State personnel will likely need the assistance of an 
information technology professional to run reports and monitor the data 
collected and submitted to MSIX, review system security, and work with 
other State or local personnel to remedy any data concerns or problems. 
We estimate that, for States that have not fully implemented MSIX, it 
will take 32 hours per month per State for one information security 
analyst, and that for other States it will take 8 hours per month. At 
$36.59 an hour (the mean hourly earnings for information security 
analysts in State government, excluding schools and hospitals, reported 
by the U.S. Bureau of Labor Statistics in its National Compensation 
Survey: Occupational Earnings in the United States, 2014), we estimate 
the services of these information security analysts will cost $323,163 
for year 1 and, assuming all States are fully implementing MSIX by the 
end of year 1, $175,632 each subsequent year. The estimate includes an 
additional $128,968 for complying with Sec.  200.85(c), which concerns 
use of MSIX's consolidated student records, to meet costs associated 
with development of electronic interfaces and communications between 
State data systems and MSIX. The Department provided resources to 
assist States with this work, as discussed earlier, and estimates that 
the burden associated with doing this work is approximately 1,816 hours 
for States that have not fully implemented MSIX and 1,800 hours for all 
States to implement the new MDE. The estimate further includes $52,809 
for complying with the requirement in Sec.  200.85(f) that MSIX users 
fill out user application forms. We estimate completing the form will 
take 5 minutes, and a supervisor will take 20 minutes to review a user 
application

[[Page 28967]]

form and other documentation to determine whether to grant access to 
MSIX to an applicant. In total, we estimate it will take 25 minutes to 
grant access to each user. The cost estimate is based on 3,525 users 
for year 1 (as discussed previously) and the same labor cost as that 
used to calculate the proposed data submission requirements. For 
subsequent years the cost is approximately $5,545 based on an estimated 
additional 370 users per year.
    The estimated cost of implementing the requirements under Sec.  
200.85(e), procedures for MSIX data correction by parents, guardians, 
and migratory children, is approximately $1,137. Based on responses to 
the Department's survey of States discussed above, we estimate each 
State will receive one request to correct data per year and that each 
request will take approximately 38 minutes to acknowledge, review, make 
any necessary corrections to the data, and notify the requester of the 
resolution to the request. In addition, based on prior experience, we 
estimate the Department will receive six data correction requests per 
year from parents, guardians, or migratory children, and anticipate 
that States will similarly require an average of 38 minutes to address 
any Department requests on this matter. The cost per hour used is the 
same as that used to estimate start-up data submissions.
    While it is difficult to quantify the benefits of these 
regulations, we believe that they will provide important benefits to 
migratory children and their families, States, and LOAs, particularly 
for the approximately 32 percent of migratory children who make an MEP-
qualifying move across school district boundaries each year (based on 
State CSPR data for performance period 2013-2014). Instantaneous access 
to records of children who have previously been identified as MEP-
eligible will reduce the time it takes school personnel to enroll those 
children in new schools and place them in appropriate classes. Prompt 
placement is necessary not only to ensure continuity of education, but 
also to ensure that migratory children receive the maximum benefits 
from the school's regular program as well as MEP services, as the MEP 
limits the amount of time that migratory children may receive services. 
In addition, prompt access to records reduces the likelihood of 
duplication of services and helps ensure that migratory children are 
placed in the right classes, which reduces the likelihood that a child 
will repeat classes or be placed in an inappropriate class, and thus 
also the likelihood that the child will suffer academically and 
emotionally. For secondary school students, having a record documenting 
credit accrual increases the likelihood that a migratory child will 
graduate from high school on time. In addition, instant access to 
records of children who have previously been identified as MEP-eligible 
will assist school districts and states in complying with their federal 
civil rights obligations to ensure that all students, regardless of 
background, have timely and equal access to educational opportunities. 
And because migrant students often enroll without adequate, and in many 
cases any, documentation of their educational and health history, full 
MSIX implementation will help school districts and states ensure that 
students are not chilled or discouraged from accessing educational 
opportunities because of lack of documentation or because of their 
actual or perceived immigration status.
    As MSIX includes information about where immunization records are 
available, it helps prevent duplication of vaccinations, an unnecessary 
additional expense for families and community health systems. Most 
States require students to be vaccinated, at a minimum, for polio, 
diphtheria, tetanus, pertussis, measles, mumps, rubella, hepatitis B, 
and varicella. The combined cost per dose as of July 2015 for these 
pediatric vaccinations under the Center for Disease Control vaccine 
contracts (established for the purchase of vaccines by immunization 
programs that receive CDC immunization grant funds, such as State 
health departments) was approximately $153, and the average cost of the 
same vaccines to the private sector was approximately $230. Reducing 
duplicate vaccinations also preserves the vaccine supply for others in 
the community. In addition, MSIX incorporates a flag for students with 
acute or chronic medical conditions, thus instantly alerting authorized 
MSIX users to the fact that a migratory child may need additional 
support services and referrals to medical care.
    We further note that these regulations were informed by the 
Department's and the States' previous experience implementing a migrant 
student record transfer service from the 1970s through the 1990s. The 
Migrant Student Record Transfer System (MSRTS) was a national, 
computer-based system for records collection and transfer established 
in response to a 1969 congressional mandate requiring the creation of a 
service for transmitting educational and health records for migrant 
students. MSRTS was terminated in 1995 due to concerns about the 
accuracy and usefulness of the data in the system, and the lack of 
uniformity in the data that States reported to the system. In addition, 
many users considered MSRTS too slow and burdensome, as the computer 
technology relied largely on a paper-based system for collecting and 
reporting information that did not incorporate technological 
advancements efficiently. These regulations are designed to ensure that 
MSIX users have ready access to complete, trustworthy, up-to-date 
records.
    The requirement that agencies serving migratory children use MSIX 
and the Consolidated Student Records MSIX generates will ensure not 
only that information in MSIX is used, but also that State and LOAs 
acquire an interest in ensuring the quality and timeliness of the data 
they provide to and obtain from the system. Other benefits include 
access to Consolidated Student Records that are current, accurate, 
complete, and secure, and that contain data that may be currently 
maintained in different systems within States; for example, State 
assessment data may not be maintained in the same system as student 
health records. States' previously voluntary participation in MSIX 
reflects the value they see in having this information on migratory 
children in one centralized location, which enables them to better 
serve one of their most vulnerable populations.
    For these reasons, the Department believes that the benefits of 
these regulations will significantly exceed the estimated costs, much 
of which would be met with Federal resources.
    Elsewhere in this section under Paperwork Reduction Act of 1995, we 
identify and explain burdens specifically associated with information 
collection requirements.

Paperwork Reduction Act of 1995

    Section 200.85 contains information collection requirements. Under 
the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3507(d)), the 
Department has submitted a copy of this section as part of the 
Information Collection Request (ICR) package to OMB for its review. An 
approved OMB control number will be assigned to this new ICR following 
the publication of the final rule.
    A Federal agency may not conduct or sponsor a collection of 
information unless OMB approves the collection under the PRA and the 
corresponding information collection instrument displays a currently 
valid OMB control number. Notwithstanding any other provision of law, 
no person is required to comply with, or is subject to penalty for 
failure to comply with, a collection of information if the collection

[[Page 28968]]

instrument does not display a currently valid OMB control number.
    MDEs consist of 72 data elements that reflect the minimal 
educational and health information needed to ensure proper enrollment, 
grade and course placement, accrual of secondary course credits, and 
participation in the MEP for migratory children. The MDEs, and the 
various information sources through which they are currently obtained, 
would not change as a result of these regulations except for the 
collection of one new MDE, the Out-of-State Records Flag, which only 
applies to secondary school-aged migratory children for whom an SEA has 
approved a new COE. The Out-of-State Records Flag indicates whether one 
of the State's LOAs has received records from a secondary school 
attended previously in another State, by the secondary school-aged 
migratory child for whom an SEA has approved a new COE. The MDE does 
not require SEAs or LOAs to collect and submit the out-of-state 
secondary school records to MSIX, but simply to indicate whether or not 
an LOA has obtained such records.
    Thirty of the MDEs are collected and entered into State data 
systems through the ICRs for the Department's EDFacts (OMB Control 
Number 1875-0240, approval first granted October 17, 2007) and for the 
MEP COE and related regulations (OMB Control Number 1810-0662, COE 
approval first granted September 5, 2008). We do not account here for 
the burden of collecting, maintaining, and submitting to MSIX these 30 
MDEs because these MDEs are already collected and maintained for other 
purposes, and we have assumed that submission of these MDEs to MSIX 
will occur automatically once a State's electronic interface with MSIX 
has been established.
    Forty-one of the remaining 42 MDEs are collected and entered into 
the State data systems under the existing MSIX ICR (OMB Control Number 
1810-0683). These regulations create a new MDE. The regulations also 
specify the parties to whom the collection applies as well as establish 
specific timelines for data collection and submission to MSIX. As a 
result, we have amended and restated the MSIX ICR to reflect, among 
other things, a new burden analysis and supporting statement.

Section 200.85--Responsibilities of SEAs for the Electronic Exchange 
Through MSIX of Specified Educational and Health Information of 
Migratory Children.

    Section 200.85 requires SEAs to collect, maintain, and submit to 
MSIX educational and health information on migratory children. This 
information will enable SEAs and their LOAs to reduce educational 
disruptions for migratory children, make timely and accurate school 
placements, ensure academic credit for school work completed, 
streamline academic progression toward graduation requirements, and 
promote the use of complete academic records as needed for 
postsecondary education and employment opportunities. The exchange of 
health-related information through MSIX will also help reduce 
unnecessary immunizations of migratory children which might otherwise 
occur due to lack of timely, accurate health information.

Estimates of Annualized Burden to SEA Respondents

    For the 42 MDEs not covered by other ICRs, the total burden for all 
SEA respondents in the first three years after the effective date of 
the regulations is estimated at 463,803 hours per year. This amounts to 
an average of 9,276 hours per year for each of the 50 SEAs. Because the 
number of MEP-eligible children varies greatly among the States, we 
have estimated the overall burden as 1,273 hours annually per 1,000 
MEP-eligible children to enable individual SEAs to assess the burden of 
the information collection.
    These estimates were developed by program and contract staff with 
experience in the State-level administration of the MEP, based upon 
consultation with States, analysis of the information reported by each 
State in its 2013-2014 CSPR (OMB Number 1810-0614), and State data 
submitted previously to MSIX. The estimated burden to collect the MDEs 
includes the effort to enter the data in the appropriate State 
information systems for electronic transmission to MSIX.
    In calculating the burden of this information collection, we have 
not included the burden associated with start-up submissions previously 
made to MSIX in whole or in part. In calculating the burden associated 
with subsequent data submissions, our estimates quantify the total 
annualized burden to SEAs, and do not specify the incremental burden to 
those SEAs that have previously collected, maintained, and submitted to 
MSIX any or all of the MDEs covered by the MSIX ICR relating to 
subsequent data submissions.
    See the discussion below for a further explanation of the burden 
related to specific regulatory provisions.

Start-up Data Submissions (Sec.  200.85(b)(2))

    As of June 2015, 27 States had already met the requirement to 
collect and submit to MSIX MDEs for every MEP-eligible child in the 
State; an additional 19 States had provided partial start-up 
submissions; and 4 States have not provided any start-up submission 
data to MSIX. We used these figures for our calculations of start-up 
data submissions. Submissions of MDEs needed as start-up data is a one-
time requirement for each SEA; submissions are required to be completed 
no later than 90 calendar days after the effective date of the final 
regulations. Amortized over three years, the annualized burden of the 
requirement for the remaining 23 States is estimated to be 9,102 hours 
per year in total and 396 hours per year per SEA. All subsequent data 
submission requirements are covered by the other information collection 
activities described below.

Migratory Children for Whom an SEA Has Approved a New COE (Sec.  
200.85(b)(3)(i)(A))

    The annualized burden to implement the requirement for 50 States to 
collect and submit the MSIX MDEs within 10 days of newly documenting 
the eligibility of each migratory child is estimated at 123,928 hours 
per year in total and 2,479 hours per SEA. Documenting the eligibility 
of migratory children is an ongoing process, and we estimate the burden 
would remain at a constant level in each of the three years that this 
information collection covers.

Migratory Children for Whom an SEA Has Approved a New COE With Prior 
Secondary School Records in the Same State (Sec.  
200.85(b)(3)(i)(B)(1))

    The annualized burden of the requirement for SEAs to collect and 
submit to MSIX MDEs from the most recent secondary school attended 
previously within the State is estimated at 26,545 hours per year in 
total and, on average, 531 hours per year per SEA. Collecting and 
submitting in-State secondary school information for migratory children 
for whom an SEA has approved a new COE is an ongoing process, and we 
estimate the burden would remain at a constant level in each of the 
three years that this information collection covers.

Migratory Children for Whom an SEA Has Approved a New COE With 
Secondary School Records From Another State (Sec.  
200.85(b)(3)(i)(B)(2))

    The annualized burden of the requirement for SEAs to notify MSIX 
within 30 days of obtaining out-of-state

[[Page 28969]]

secondary school records for a migratory child for whom an SEA has 
approved a new COE is estimated at 38,441 hours per year in total, and 
to average 769 hours per year for each SEA. Our burden estimate 
includes a one-time effort for each State to modify its State data 
system and MSIX interface to collect and submit a new MDE to indicate 
whether an LOA has out-of-state school records for a secondary school-
aged migratory child for whom an SEA has approved a new COE (this one-
year effort is amortized over the three years of the collection). 
Documenting migratory children is an ongoing process, and we therefore 
estimate that the burden will remain constant for each of the three 
years this information collection covers.

End of Term Submissions (Sec.  200.85(b)(3)(ii))

    The annualized burden of the requirement to collect and submit 
updated and newly available MDEs to MSIX within 30 days after the end 
of each educational term for all migratory children is estimated at 
261,069 hours per year in total, and to average 5,221 hours per year 
per SEA. This is an ongoing process, and we therefore estimate that the 
burden will remain constant for each of the three years this 
information collection covers.

Notice of Change of Residence Submissions (Sec.  200.85(b)(3)(iii))

    The annualized burden of the requirement to collect and submit to 
MSIX all new and updated MDEs within four working days of receiving 
notification from MSIX that a migratory child has changed residence is 
estimated at 4,682 hours per year in total, and to average 94 hours per 
year per SEA. This is an ongoing process, and we therefore estimate the 
burden will remain constant for each of the three years this 
information collection covers.

Parental Request to SEAs for MSIX Data Correction (Sec.  
200.85(e)(1)(ii))

    The annualized burden for SEAs to submit revised data to MSIX 
within 4 working days of the decision to correct previously submitted 
data following a request from a parent, guardian, or migratory child is 
estimated at 32 hours per year in total, and on average .6 hours per 
year per SEA. This is an ongoing process, and we therefore estimate the 
burden will remain constant for each of the three years this 
information collection covers.

Parental Request to the Department for MSIX Data Correction (Sec.  
200.85(e)(3))

    The annualized burden for SEAs to respond within 10 working days to 
a request for information from the Department in order for the 
Department to respond to an individual's request to correct or amend a 
Consolidated Student Record under the Federal Privacy Act is estimated 
at four hours per year in total, and on average 0.1 hour per year per 
SEA. This is an ongoing process, and we therefore estimate the burden 
will remain constant for each of the three years the information 
collection covers.

Collection of Information

 
------------------------------------------------------------------------
       Reporting activity             Description         Total burden
------------------------------------------------------------------------
1. Start-up Data Submission Sec.  Collect and submit               9,102
   200.85(b)(2).                   to MSIX all MDEs
                                   applicable to
                                   child's age and
                                   grade level for
                                   every migratory
                                   child eligible to
                                   receive MEP
                                   services in the
                                   State on the
                                   effective date of
                                   these regulations,
                                   other than through
                                   continuation of
                                   services provided
                                   under section
                                   1304(e) of the
                                   ESEA.
2. Migratory Children for Whom    Collect and submit             123,928
 an SEA has Approved a New COE     to MSIX all MDEs
 Sec.   200.85(b)(3)(i)(A).        applicable to
                                   child's age and
                                   grade level for
                                   migratory children
                                   for whom an SEA
                                   has approved a new
                                   COE.
3. Migratory Children for Whom    Collect and submit              26,545
 an SEA has Approved a New COE     all applicable
 with Secondary School Records     MDEs from the most
 in the Same State Sec.            recent secondary
 200.85(b)(3)(i)(B)(1).            school previously
                                   attended within
                                   the same State by
                                   the secondary
                                   school-aged
                                   migratory child
                                   for whom an SEA
                                   has approved a new
                                   COE.
4. Migratory Children for Whom    Notify MSIX if one              38,441
 an SEA has Approved a New COE     of its local
 with Secondary School Records     operating agencies
 from Another State Sec.           obtains records
 200.85(b)(3)(i)(B)(2).            from a secondary
                                   school previously
                                   attended in
                                   another State by
                                   the secondary
                                   school-aged
                                   migratory child
                                   for whom an SEA
                                   has approved a new
                                   COE.
5. End of Term Submissions Sec.   Collect and submit             261,069
  200.85(b)(3)(ii).                to MSIX all MDE
                                   updates and newly
                                   available MDEs for
                                   migratory children
                                   who were MEP-
                                   eligible during
                                   the term and for
                                   whom the SEA
                                   previously
                                   submitted data.
6. Change of Residence            Collect and submit               4,682
 Submissions Sec.                  to MSIX all newly
 200.85(b)(3)(iii).                available MDEs and
                                   MDE updates that
                                   have become
                                   available to the
                                   SEA or one of its
                                   local operating
                                   agencies.
7. Parental Request for MSIX      If an SEA                           32
 Data Correction Sec.              determines that
 200.85(e)(1)(ii).                 data previously
                                   submitted to MSIX
                                   should be
                                   corrected as the
                                   result of a
                                   request from a
                                   parent, guardian,
                                   or migratory
                                   child, the SEA
                                   must submit
                                   revised data.
8. Response to the Department     Submit information                   4
 Sec.   200.85(e)(3).              requested by the
                                   Department needed
                                   to respond to an
                                   individual's
                                   request to amend a
                                   Consolidated
                                   Student Record
                                   under the Privacy
                                   Act.
------------------------------------------------------------------------

Intergovernmental Review

    This program is subject to the requirements of Executive Order 
12372 and the regulations in 34 CFR part 79. One of the objectives of 
the Executive order is to foster an intergovernmental partnership and a 
strengthened federalism. The Executive order relies on processes 
developed by State and local governments for coordination and review of 
proposed Federal financial assistance. This document provides early 
notification of our specific plans and actions for this program.

[[Page 28970]]

Assessment of Educational Impact

    In the NPRM we requested comments on whether the proposed 
regulations would require transmission of information that any other 
agency or authority of the United States gathers or makes available. 
Based on the response to the NPRM and on our review, we have determined 
that these final regulations do not require transmission of information 
that any other agency or authority of the United States gathers or 
makes available.

Federalism

    Executive Order 13132 requires us to ensure meaningful and timely 
input by State and local elected officials in the development of 
regulatory policies that have federalism implications. ``Federalism 
implications'' means substantial direct effects on the States, on the 
relationship between the National Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.
    In the NPRM we identified a specific section (Sec.  200.85) that 
may have federalism implications and encouraged State and local elected 
officials to review and provide comments on the proposed regulations. 
In the Analysis of Comments and Changes section of this preamble, we 
discuss any comments we received on this subject.
    Accessible Format: Individuals with disabilities can obtain this 
document in an accessible format (e.g., braille, large print, 
audiotape, or compact disc) on request to the program contact person 
listed under FOR FURTHER INFORMATION CONTACT.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. Free 
Internet access to the official edition of the Federal Register and the 
Code of Federal Regulations is available via the Federal Digital System 
at: www.gpo.gov/fdsys. At this site you can view this document, as well 
as all other documents of this Department published in the Federal 
Register, in text or Adobe Portable Document Format (PDF). To use PDF 
you must have Adobe Acrobat Reader, which is available free at the 
site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at: 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department. (Catalog of Federal Domestic Assistance Number: 
84.011 Title I, Education of Migratory Children)

List of Subjects in 34 CFR Part 200

    Education of disadvantaged, Elementary and secondary education, 
Grant programs-education, Indians-education, Infants and children, 
Juvenile delinquency, Migrant labor, Private schools, Reporting and 
recordkeeping requirements.

    Dated: May 3, 2016.
John B. King, Jr.,
Secretary of Education.

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

PART 200--TITLE I--IMPROVING THE ACADEMIC ACHIEVEMENT OF THE 
DISADVANTAGED

0
1. The authority citation for part 200 continues to read as follows:

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

0
2. Section 200.81 is amended by:
0
a. Redesignating paragraphs (h) through (k) as paragraphs (m) through 
(p).
0
b. Redesignating paragraph (g) as paragraph (j).
0
c. Redesignating paragraphs (d) through (f) as paragraphs (f) through 
(h).
0
d. Redesignating paragraphs (b) and (c) as paragraphs (c) and (d), 
respectively.
0
e. Adding new paragraphs (b), (e), (i), (k), and (l).
    The additions read as follows:


Sec.  200.81  Program definitions.

* * * * *
    (b) Consolidated Student Record means the MDEs for a migratory 
child that have been submitted by one or more SEAs and consolidated 
into a single, uniquely identified record available through MSIX.
* * * * *
    (e) Migrant Student Information Exchange (MSIX) means the 
nationwide system administered by the Department for linking and 
exchanging specified educational and health information for all 
migratory children.
* * * * *
    (i) Minimum Data Elements (MDEs) means the educational and health 
information for migratory children that the Secretary requires each SEA 
that receives a grant of MEP funds to collect, maintain, and submit to 
MSIX, and use under this part. MDEs may include--
    (1) Immunization records and other health information;
    (2) Academic history (including partial credit), credit accrual, 
and results from State assessments required under the ESEA;
    (3) Other academic information essential to ensuring that migratory 
children achieve to high academic standards; and
    (4) Information regarding eligibility for services under the 
Individuals with Disabilities Education Act.
* * * * *
    (k) MSIX Interconnection Agreement means the agreement between the 
Department and an SEA that governs the interconnection of the State 
migrant student records system(s) and MSIX, including the terms under 
which the agency will abide by the agreement based upon its review of 
all relevant technical, security, and administrative issues.
    (l) MSIX Interconnection Security Agreement means the agreement 
between the Department and an SEA that specifies the technical and 
security requirements for establishing, maintaining, and operating the 
interconnection between the State migrant student records system and 
MSIX. The MSIX Interconnection Security Agreement supports the MSIX 
Interconnection Agreement and documents the requirements for connecting 
the two information technology systems, describes the security controls 
to be used to protect the systems and data, and contains a topological 
drawing of the interconnection.
* * * * *

0
3. Section 200.84 is revised to read as follows:


Sec.  200.84  Responsibilities for evaluating the effectiveness of the 
MEP and using evaluations to improve services to migratory children.

    (a) Each SEA must determine the effectiveness of its MEP through a 
written evaluation that measures the implementation and results 
achieved by the program against the State's performance targets in 
Sec.  200.83(a)(1), particularly for those students who have priority 
for service as defined in section 1304(d) of the ESEA.
    (b) SEAs and local operating agencies receiving MEP funds must use 
the results of the evaluation carried out by an SEA under paragraph (a) 
of this section to improve the services provided to migratory children.
    (Authority: 20 U.S.C. 6394)

0
4. Section 200.85 is revised to read as follows:


Sec.  200.85  Responsibilities of SEAs for the electronic exchange 
through MSIX of specified educational and health information of 
migratory children.

    (a) MSIX State record system and data exchange requirements. In 
order to

[[Page 28971]]

receive a grant of MEP funds, an SEA must collect, maintain, and submit 
to MSIX MDEs and otherwise exchange and use information on migratory 
children in accordance with the requirements of this section. Failure 
of an SEA to do so constitutes a failure under section 454 of the 
General Education Provisions Act, 20 U.S.C. 1234c, to comply 
substantially with a requirement of law applicable to the funds made 
available under the MEP.
    (b) MSIX data submission requirements--(1) General. (i) In order to 
satisfy the requirements of paragraphs (b)(2) and (3) of this section, 
an SEA that receives a grant of MEP funds must submit electronically to 
MSIX the MDEs applicable to the child's age and grade level. An SEA 
must collect and submit the MDEs applicable to the child's age and 
grade level, regardless of the type of school in which the child is 
enrolled (e.g., public, private, or home school), or whether a child is 
enrolled in any school.
    (ii) For migratory children who are or were enrolled in private 
schools, the SEA meets its responsibility under paragraph (b)(1)(i) of 
this section for collecting MDEs applicable to the child's age and 
grade level by advising the parent of the migratory child, or the 
migratory child if the child is emancipated, of the necessity of 
requesting the child's records from the private school, and by 
facilitating the parent or emancipated child's request to the private 
school that it provide all necessary information from the child's 
school records--
    (A) Directly to the parent or emancipated child, in which case the 
SEA must follow up directly with the parent or child; or
    (B) To the SEA, or a specific local operating agency, for 
forwarding to MSIX, in which case the SEA must follow up with the 
parent, emancipated child, or the private school to make sure that the 
records requested by the parent or emancipated child have been 
forwarded.
    (iii) For migratory children who are or were enrolled in home 
schools, the SEA meets its responsibility under paragraph (b)(1)(i) of 
this section for collecting MDEs applicable to the child's age and 
grade level by requesting these records, either directly or through a 
local operating agency, directly from the parent or emancipated child.
    (2) Start-up data submissions. No later than 90 calendar days after 
the effective date of these regulations, an SEA must collect and submit 
to MSIX each of the MDEs described in paragraph (b)(1)(i) of this 
section applicable to the child's age and grade level for every 
migratory child who is eligible to receive MEP services in the State on 
the effective date of these regulations, other than through 
continuation of services provided under section 1304(e) of the ESEA.
    (3) Subsequent data submissions. An SEA must comply with the 
following timelines for subsequent data submissions throughout the 
entire calendar year whether or not local operating agencies or LEAs in 
the State are closed for summer or intersession periods.
    (i) Migratory children for whom an SEA has approved a new 
Certificate of Eligibility. For every migratory child for whom an SEA 
approves a new Certificate of Eligibility under Sec.  200.89(c) after 
the effective date of these regulations--
    (A) An SEA must collect and submit to MSIX the MDEs described in 
paragraph (b)(1)(i) of this section within 10 working days of approving 
a new Certificate of Eligibility for the migratory child. The SEA is 
not required to collect and submit MDEs in existence before its 
approval of a new Certificate of Eligibility for the child except as 
provided in paragraph (b)(3)(i)(B) of this section; and
    (B) An SEA that approves a new Certificate of Eligibility for a 
secondary school-aged migratory child must also--
    (1) Collect and submit to MSIX within 10 working days of approving 
a new Certificate of Eligibility for the child MDEs from the most 
recent secondary school in that State attended previously by the 
migratory child; and
    (2) Notify MSIX within 30 calendar days if one of its local 
operating agencies obtains records from a secondary school attended 
previously in another State by the migratory child.
    (ii) End of term submissions. (A) Within 30 calendar days of the 
end of an LEA's or local operating agency's fall, spring, summer, or 
intersession terms, an SEA must collect and submit to MSIX all MDE 
updates and newly available MDEs for migratory children who were 
eligible for the MEP during the term and for whom the SEA submitted 
data previously under paragraph (b)(2) or (b)(3)(i) of this section.
    (B) When a migratory child's MEP eligibility expires before the end 
of a school year, an SEA must submit all MDE updates and newly 
available MDEs for the child through the end of the school year.
    (iii) Change of residence submissions. (A) Within four working days 
of receiving notification from MSIX that a migratory child in its State 
has changed residence to a new local operating agency within the State 
or another SEA has approved a new Certificate of Eligibility for a 
migratory child, an SEA must collect and submit to MSIX all new MDEs 
and MDE updates that have become available to the SEA or one of its 
local operating agencies since the SEA's last submission of MDEs to 
MSIX for the child.
    (B) An SEA or local operating agency that does not yet have a new 
MDE or MDE update for a migratory child when it receives a change of 
residence notification from MSIX must submit the MDE to MSIX within 
four working days of the date that the SEA or one of its local 
operating agencies obtains the MDE.
    (c) Use of Consolidated Student Records. In order to facilitate 
school enrollment, grade and course placement, accrual of high school 
credits, and participation in the MEP, each SEA that receives a grant 
of MEP funds must--
    (1) Use, and require each of its local operating agencies to use, 
the Consolidated Student Record for all migratory children who have 
changed residence to a new school district within the State or in 
another State;
    (2) Encourage LEAs that are not local operating agencies receiving 
MEP funds to use the Consolidated Student Record for all migratory 
children described in paragraph (c)(1) of this section; and
    (3) Establish procedures, develop and disseminate guidance, and 
provide training in the use of Consolidated Student Records to SEA, 
local operating agency, and LEA personnel who have been designated by 
the SEA as authorized MSIX users under paragraph (f)(2) of this 
section.
    (d) MSIX data quality. Each SEA that receives a grant of MEP funds 
must--
    (1) Use, and require each of its local operating agencies to use, 
reasonable and appropriate methods to ensure that all data submitted to 
MSIX are accurate and complete; and
    (2) Respond promptly, and ensure that each of its local operating 
agencies responds promptly, to any request by the Department for 
information needed to meet the Department's responsibility for the 
accuracy and completeness of data in MSIX in accordance with the 
Privacy Act of 1974, as amended, 5 U.S.C. 552a(e)(6) and (g)(1)(C) or 
(D).
    (e) Procedures for MSIX data correction by parents, guardians, and 
migratory children. Each SEA that receives a grant of MEP funds must 
establish and implement written procedures that allow a parent or 
guardian of a migratory child, or a migratory child, to ask the SEA to 
correct or determine the correctness of

[[Page 28972]]

MSIX data. An SEA's written procedures must meet the following minimum 
requirements:
    (1) Response to parents, guardians, and migratory children. (i) 
Within 30 calendar days of receipt of a data correction request from a 
parent, guardian, or migratory child, an SEA must--
    (A) Send a written or electronic acknowledgement to the requester;
    (B) Investigate the request;
    (C) Decide whether to revise the data as requested; and
    (D) Send the requester a written or electronic notice of the SEA's 
decision.
    (ii) If an SEA determines that data it submitted previously to MSIX 
should be corrected, the SEA must submit the revised data to MSIX 
within four working days of its decision to correct the data. An SEA is 
not required to notify MSIX if it decides not to revise the data as 
requested.
    (iii)(A) If a parent, guardian, or migratory child requests that an 
SEA correct or determine the correctness of data that was submitted to 
MSIX by another SEA, within four working days of receipt of the 
request, the SEA must send the data correction request to the SEA that 
submitted the data to MSIX.
    (B) An SEA that receives an MSIX data correction request from 
another SEA under this paragraph must respond as if it received the 
data correction request directly from the parent, guardian, or 
migratory child.
    (2) Response to SEAs. An SEA or local operating agency that 
receives a request for information from an SEA that is responding to a 
parent's, guardian's, or migratory child's data correction request 
under paragraph (e)(1) of this section must respond in writing within 
ten working days of receipt of the request.
    (3) Response to the Department. An SEA must respond in writing 
within ten working days to a request from the Department for 
information needed by the Department to respond to an individual's 
request to correct or amend a Consolidated Student Record under the 
Privacy Act of 1974, as amended, 5 U.S.C. 552a(d)(2) and 34 CFR 5b.7.
    (f) MSIX data protection. Each SEA that receives a grant of MEP 
funds must--
    (1) Enter into and carry out its responsibilities in accordance 
with an MSIX Interconnection Agreement, an MSIX Interconnection 
Security Agreement, and other information technology agreements 
required by the Secretary in accordance with applicable Federal 
requirements;
    (2) Establish and implement written procedures to protect the 
integrity, security, and confidentiality of Consolidated Student 
Records, whether in electronic or print format, through appropriate 
administrative, technical, and physical safeguards established in 
accordance with the MSIX Interconnection Agreement and MSIX 
Interconnection Security Agreement. An SEA's written procedures must 
include, at a minimum, reasonable methods to ensure that--
    (i) The SEA permits access to MSIX only by authorized users at the 
SEA, its local operating agencies, and LEAs in the State that are not 
local operating agencies but where a migratory child has enrolled; and
    (ii) The SEA's authorized users obtain access to and use MSIX 
records solely for authorized purposes as described in paragraph (c) of 
this section;
    (3) Require all authorized users to complete the User Application 
Form approved by the Secretary before providing them access to MSIX. An 
SEA may also develop its own documentation for approving user access to 
MSIX provided that it contains the same information as the User 
Application Form approved by the Secretary; and
    (4) Retain the documentation required for approving user access to 
MSIX for three years after the date the SEA terminates the user's 
access.

    Authority:  20 U.S.C. 6398.

[FR Doc. 2016-10658 Filed 5-9-16; 8:45 am]
 BILLING CODE 4000-01-P