FR Doc 06-7646
[Federal Register: September 13, 2006 (Volume 71, Number 177)]
[Rules and Regulations]
[Page 54187-54194]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13se06-14]
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Part VI
Department of Education
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34 CFR Part 200
Title I--Improving the Academic Achievement of the Disadvantaged;
Final Rule
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DEPARTMENT OF EDUCATION
34 CFR Part 200
RIN 1810-AA97
Title I--Improving the Academic Achievement of the Disadvantaged
AGENCY: Office of Elementary and Secondary Education, Department of
Education.
ACTION: Final regulations.
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SUMMARY: The Secretary amends the regulations governing the programs
administered under Title I, Part A, of the Elementary and Secondary
Education Act of 1965, as amended (ESEA). These regulations are needed
to implement statutory provisions regarding State, local educational
agency (LEA), and school accountability for the academic achievement of
limited English proficient (LEP) students and are needed to implement
changes to Title I of the ESEA made by the No Child Left Behind Act of
2001 (NCLB Act).
DATES: These regulations are effective October 13, 2006. Affected
parties do not have to comply with the information collection
requirements in Sec. 200.6(b)(4)(i)(C) until the Department 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: Jacquelyn C. Jackson, Ed.D., Director,
Student Achievement and School Accountability Programs, Office of
Elementary and Secondary Education, U.S. Department of Education, 400
Maryland Avenue, SW., Room 3W202, FB-6, Washington, DC 20202-6132.
Telephone: (202) 260-0826.
If you use a telecommunications device for the deaf (TDD), you may
call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed under FOR FURTHER
INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION: These regulations implement statutory
provisions of Title I, Part A of the ESEA, as amended by the NCLB Act
(Pub. L. 107-110), enacted January 8, 2002. On June 24, 2004, the
Secretary published a notice of proposed rulemaking (NPRM) in the
Federal Register (69 FR 35462).
Under Title I of the ESEA, LEP students must be included in a
State's assessment of academic achievement in reading/language arts and
mathematics, and must receive appropriate accommodations and, to the
extent practicable, native language assessments. LEP students must also
be assessed annually for their proficiency in English in the modalities
of listening, speaking, reading, and writing.
In the preamble to the NPRM, the Secretary discussed on pages 35463
and 35464 the major changes proposed to the current Title I
regulations. These changes are summarized as follows:
Under proposed Sec. 200.6(b)(4), a State would be able to
exempt ``recently arrived LEP students'' from one administration of the
State's reading/language arts assessment. Proposed Sec. 200.6(b)(4)(i)
would define a recently arrived LEP student as a LEP student who has
attended schools in the United States (not including Puerto Rico) for
less than 10 months.
Under proposed Sec. 200.20(f)(1)(ii), a State would not
be required to include the scores of recently arrived LEP students on
the reading/language arts assessment (if taken) in decisions regarding
adequate yearly progress (AYP), even if the student has been enrolled
for a full academic year as defined by the State. However, these
students could be counted as participants toward meeting the 95 percent
participation requirement for AYP determinations in reading/language
arts if they take an English language proficiency test. Under proposed
Sec. 200.20(f)(1)(ii), the State also would not be required to include
the scores of recently arrived LEP students on the mathematics
assessment in AYP decisions.
Under proposed Sec. 200.20(f)(2), a State would be
permitted to include ``former LEP'' students within the LEP subgroup in
making AYP determinations for up to two years after they no longer meet
the State's definition for limited English proficiency.
Proposed Sec. 200.20(f)(2)(iii) would not allow States to
include former LEP students when reporting achievement results on State
and LEA report cards, as required under section 1111(h)(1)(C) and (2)
of the ESEA.
In these final regulations, we are making several significant
changes from the regulations proposed in the NPRM. These changes are as
follows:
Definition of recently arrived LEP students. The Secretary
has made several changes in the definition of recently arrived LEP
students. First, Sec. 200.6(b)(4)(iv) defines a recently arrived LEP
student as a student with limited proficiency in English who has
attended schools in the United States for less than twelve months,
rather than ten months as provided in the NPRM. The Secretary made this
change to accommodate year-round schools. The Secretary notes that this
definition focuses on length of time in United States schools, not
length of time in the United States. The Secretary also notes that
States may only exempt recently arrived LEP students from one
administration of the State's reading/language arts assessment.
Second, the Secretary has clarified, in Sec. 200.6(b)(4)(iv) that
the phrase ``schools in the United States'' means only schools in the
50 States and the District of Columbia. It does not include schools in
Puerto Rico, the outlying areas, or the freely associated states.
Instruction for recently arrived LEP students. The
Secretary has added Sec. 200.6(b)(4)(i)(D) to emphasize that,
notwithstanding the flexibility the regulations afford regarding
assessment and accountability with respect to recently arrived LEP
students, an LEA has the responsibility to provide appropriate
instruction to these students to assist them in gaining English-
language proficiency as well as content knowledge in reading/language
arts and mathematics.
Reporting data on exemptions for recently arrived LEP
students. The Secretary has added Sec. 200.6(b)(4)(i)(C) to require a
State and its LEAs, on State and district report cards, respectively,
to report annually the number of recently arrived LEP students exempted
from one administration of the State's reading/language arts
assessment.
Reporting data on former LEP students. In Sec.
200.20(f)(2)(iii), the Secretary has clarified how to report data
relating to former LEP students on a State's or LEA's report card. This
section clarifies that a State or LEA may include the scores of former
LEP students as part of the LEP subgroup only for the purpose of
reporting AYP. States and LEAs may not include former LEP students in
the LEP subgroup on State or LEA report cards for any other purpose.
The Secretary also has clarified that, if a State or LEA chooses to
include the scores of former LEP students as part of the LEP subgroup
for calculating and reporting AYP, the State or LEA must include the
scores of all students defined as former LEP students in AYP
calculations and reporting.
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Analysis of Comments and Changes
In response to the Secretary's invitation in the NPRM,
approximately 50 parties submitted comments on the proposed
regulations. An analysis of the comments and of the changes in the
regulations since publication of the NPRM follows.
We discuss substantive issues under the sections of the regulations
to which they pertain. Generally, we do not address technical or minor
changes, and suggested changes that we are not authorized to make under
the law.
Section 200.6 Inclusion of all students
Comment: Many commenters recommended changing the definition of a
``recently arrived'' LEP student to mean a LEP student who has attended
schools in the United States for a period of time ranging from 12
months to five years or to tie the definition to a student's English
language proficiency. Several others commented that a requirement based
on the length of time a student has attended schools in the United
States may be difficult to implement. One commenter recommended
defining a ``recently arrived'' LEP student by the length of time the
student has attended schools in a particular State.
Discussion: The purpose of these regulations is to allow a one-time
exemption from content assessments in reading/language arts for those
students who have had little instructional time in United States
schools and are not proficient in English. The definition of recently
arrived LEP students in the proposed regulations had two components:
(1) A time limit, and (2) a limit on the number of times a student may
be exempted from taking the reading/language arts assessment. We
believed it was important to have a time limit to ensure that the one-
time exemption is used only for LEP students who have recently arrived
in schools in the United States, not for those students who have lived
in the United States for a number of years and attended United States
schools but who still possess limited proficiency in English.
The proposed regulations provided that recently arrived LEP
students would be those who have attended schools in the United States
for less than ten months before the State's reading/language arts test
is administered. The purpose of the ten-month time limit was to provide
a limit that was the equivalent of one year's worth of instruction.
However, a ten-month time limit may not equate to a full year of
instruction in certain circumstances, such as in a year-round school
that operates over 12 months. The Secretary thus agrees that ten months
may be confusing to implement in certain circumstances, and that
changing the limit to 12 months maintains a limit of one year while
affording flexibility and reducing any potential confusion. Even with
this change, recently arrived LEP students are exempt from only one
administration of the State's reading/language arts assessment.
While the Secretary recognizes that ascertaining the number of
months of attendance in U.S. schools for recently arrived LEP students
may be challenging for some States, in order to implement the
flexibility related to recently arrived LEP students, a State must be
able to identify such students. The Department intends to prepare
guidance to assist States in making these determinations.
The definition of a recently arrived LEP student is not intended to
include students who have lived in the United States for much of their
lives and/or have attended United States schools for more than 12
months but have not learned sufficient English to demonstrate even
limited proficiency.
Changes: Section 200.6(b)(4)(iv) has been amended to permit States
to consider LEP students as being recently arrived if they have
attended schools in the United States for less than 12 months.
Comment: Several commenters recommended that recently arrived LEP
students also be exempt from the first administration of the State's
mathematics assessment, as well as the science assessment required by
2007-2008.
Discussion: The final regulations require that recently arrived LEP
students take the mathematics assessment. The Secretary believes that
English language proficiency is not a prerequisite to participating in
State mathematics assessments to the same extent as it is to
participating in State reading/language arts assessments. Research
provides evidence on accommodations that can be used with LEP students
in mathematics and have been shown not to compromise the validity of
the test and skills being measured when appropriately implemented.\1\
With accommodations, recently arrived LEP students should be able to
demonstrate sufficient knowledge of mathematics to provide useful
information to teachers in order to inform instruction and to parents
to let them know how their child is achieving. The regulations
recognize that valuable information can be obtained to inform
instruction when recently arrived LEP students take the mathematics
assessment, but provide flexibility to States to exclude these scores
from AYP calculations for one year.
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\1\ See, for example, Abedi and Leon, 1999; Abedi, Leon and
Mirocha, 2001; Abedi et al., 2000, for research on test
accommodations and findings related to accommodations used on
mathematics assessments with LEP students that allow students to
demonstrate knowledge of content without unfair advantage or without
compromising test validity.
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While taking these assessments, recently arrived LEP students
should receive the same accommodations as provided during classroom
instruction. Science assessments are not required to be in place until
the 2007-2008 school year and even then are not required to be included
in AYP determinations.
Changes: None.
Comment: Two commenters expressed concern that the language in
proposed Sec. 200.6(b)(4)(i) could be misconstrued to mean that
students who attended schools in Puerto Rico, a Commonwealth of the
United States, may not be included in the population of recently
arrived LEP students.
Discussion: In proposed Sec. 200.6(b)(4)(i), the Secretary
intended that students who come to the United States from Puerto Rico,
where Spanish is the language of instruction, would not be considered
to have been enrolled in United States schools while in Puerto Rico.
Thus, LEP students from Puerto Rico would be included in the definition
of recently arrived LEP students for purposes of these regulations.
Changes: Section 200.6(b)(4)(iv) has been changed to state
explicitly that only schools in the 50 States and the District of
Columbia are considered to be schools in the United States for purposes
of these regulations. As a result, LEP students from Puerto Rico, the
outlying areas, and the freely associated States are included in the
definition of recently arrived LEP students.
Comment: Two commenters expressed concern that the regulations
provide no incentive for LEAs to serve recently arrived LEP students
and urged the Secretary to encourage LEAs to provide recently arrived
LEP students with intensified instruction in both English language
development and academic content so that the students will be better
prepared to take the State's assessments the following year.
Discussion: The Secretary agrees that these regulations are not an
invitation for LEAs to ignore either content or English language
instruction for recently arrived LEP students merely because the
students' scores may not be included in
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accountability decisions. To the contrary, the purpose of the
regulations is to afford LEAs time to provide instruction in English as
well as content to recently arrived LEP students to prepare them to
take the State's assessment in reading/language arts the following
year.
Changes: Section 200.6(b)(4)(i)(D) has been added to explicitly
state that nothing in these regulations relieves an LEA of its
responsibility under applicable law to provide recently arrived LEP
students with appropriate instruction to enhance their English language
proficiency and their knowledge of content in reading/language arts
during the period in which they may be exempt from the State's reading/
language arts assessment.
Comment: Several commenters urged the Secretary to assist in
research, development, validation, and dissemination of native language
assessments.
Discussion: The Secretary recognizes the value of native language
assessments in measuring the proficiency of limited English proficient
students in reading, mathematics, science, and other core academic
subjects that are anchored to rigorous State content standards. States
may use funds under section 6111 of the ESEA, Grants for State
Assessments and Related Activities, section 6112 of the ESEA, Grants
for Enhanced Assessment Instruments, and consolidated State
administrative funds to address this need and can join various
consortia funded by the Department that are developing better
strategies and instruments to include LEP students in State standards-
based assessment systems. In addition, the Department has recently
initiated a partnership with States to offer long-term support and
technical assistance in order to help States improve content assessment
options for LEP students, including native language assessments,
assessments using plain language or simplified English, effective use
of accommodations with LEP students and other approaches.
Changes: None.
Comment: Two commenters requested that the final regulations define
Spanish native language assessments as always ``practicable'' and
clarify the States' responsibilities to develop and administer native
language assessments.
Discussion: Section 200.6(b) of the current Title I regulations
requires that States assess limited English proficient students in a
valid and reliable manner that includes reasonable accommodations and,
to the extent practicable, assessments in the language and form most
likely to yield accurate and reliable information on what those
students know and can do to determine the students' mastery of skills
in subjects other than English. Although Spanish is the most common of
the hundreds of different languages spoken by LEP students, Spanish
native language assessments are not always practicable, nor do they
always result in accurate and reliable information on what students
know and can do. For example, a native language assessment may not
yield valid and reliable results for students who are not literate in
their native language, who speak a dialect that is different from the
one in which the native language assessment is written, or who receive
the majority of their instruction in English and thus have not been
exposed to the academic vocabulary of their native language.
Changes: None.
Comment: None.
Discussion: Dissemination, through report cards, of clear and
understandable data on student participation in and performance on
State assessments is central to the NCLB Act and is the best management
tool we have for improving schools. Upon the Department's own internal
review of these regulations, the Secretary has determined that these
regulations should help ensure that parents and the public are informed
annually about the number of recently arrived LEP students exempted
from State reading/language arts assessments.
Change: We have added new Sec. 200.6(b)(4)(i)(C) to require States
and LEAS to report on their report cards the number of recently arrived
LEP students who are not assessed on the State's reading/language arts
assessment.
Section 200.20 Making Adequate Yearly Progress
Comment: Several commenters recommended that the regulations permit
States to include formerly LEP students in reporting the achievement of
the LEP subgroup on State and LEA report cards required under section
1111(h) of the ESEA.
Discussion: The Secretary recognizes that the LEP subgroup is one
whose membership can change from year to year as students who have
attained English proficiency exit the subgroup and new students not
proficient in English enter the subgroup. Because LEP students exit the
LEP subgroup once they attain English language proficiency, school
assessment results for that subgroup may not reflect the gains that LEP
students have made in academic achievement. Recognizing this, the final
regulations allow a State to include ``former LEP'' students within the
LEP subgroup in making AYP determinations for up to two years after
they no longer meet the State's definition for limited English
proficiency. At the same time, however, it is important that parents
and the public have a clear picture of the academic achievement of
those students who are presently limited English proficient. Thus, the
final regulations distinguish between including former LEP students in
the LEP subgroup for assessment data reporting and including them in
that subgroup when reporting AYP on State and LEA report cards.
Under the ESEA, in section 1111(h)(1)(C), and section 1111(h)(2)(B)
as that section applies to an LEA and each school served by the LEA,
information on subgroups is reported in two distinct ways. Under
section 1111(h)(1)(C)(i, iii, iv, v, and vi) and section 1111(h)(2)(B)
as that section applies to an LEA and each school served by the LEA,
information is reported for all students and the students in each
subgroup (race/ethnicity, gender, disability status, migrant status,
English proficiency, and status as economically disadvantaged),
regardless of whether a student's achievement is used in determining if
the subgroup has made AYP (i.e., reporting includes students who have
not been enrolled for a full academic year, as defined by the State,
and students in subgroups too small to meet the State's minimum group
size for determining AYP). For reporting under the above-referenced
provisions, former LEP students may not be included in the LEP subgroup
because it is important that parents and the public have a clear
picture of the academic achievement of students who are currently
limited English proficient. On the other hand, section
1111(h)(1)(C)(ii) and section 1111(h)(2)(B), as that section applies to
an LEA and each school served by the LEA, provide for a comparison
between the achievement levels of subgroups and the State's annual
measurable objectives for AYP in reading/language arts and mathematics
(for all students, and disaggregated by race/ethnicity, disability
status, English proficiency, and status as economically disadvantaged).
For this section of State and LEA report cards, States and LEAs are
reporting on how students whose assessment scores were used in
determining AYP (i.e., students enrolled for a full academic year) for
reading/language arts and mathematics compare to the State's annual
measurable objective for AYP. For reporting AYP by
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subgroup, former LEP students may be included in the LEP subgroup.
Changes: Section 200.20(f)(2)(iii) has been changed to clarify the
distinction between reporting assessment data and reporting
accountability data on State and LEA report cards and to clarify that
``former LEP'' students may be included within the LEP subgroup only
under section 1111(h)(1)(C)(ii) of the ESEA, and section 1111(h)(2)(B)
of the ESEA as that section applies to comparable data reported on LEA
report cards.
Comment: One commenter contended that Sec. 200.20 should allow the
State to include, in the LEP subgroup, those students who were LEP but
who no longer meet the State's definition for up to three years instead
of the two years proposed in the NPRM.
Discussion: Section 3121(a)(4) of Title III of the ESEA requires
LEAs that receive Title III funds to monitor the progress of students
served by Title III in meeting challenging State academic content and
academic achievement standards for each of the two years after such
students are no longer receiving Title III services. Because of this
Title III requirement, States have already begun designing data
collection systems to track students in this manner. The Secretary
believes the final regulations should be consistent with the Title III
provisions.
Changes: None.
Comment: One commenter recommended that States be required to
include former LEP students in the LEP subgroup in determining whether
a school or LEA has a sufficient number of LEP students to yield
statistically reliable information under Sec. 200.7(a).
Discussion: The regulations are designed to assist schools and LEAs
that have a LEP subgroup of sufficient size (without including former
LEP students) to yield statistically reliable information, as
determined by the State, to demonstrate their progress with that
subgroup by enabling those schools and LEAs to include the scores of
former LEP students in AYP calculations for up to two years after the
student exits the LEP subgroup. States that wish to include former LEP
students in the LEP subgroup in determining whether a school or LEA has
a sufficient number of LEP students to yield statistically reliable
information under Sec. 200.7(a) may do so.
Changes: None.
Comment: One commenter recommended that the Secretary clarify that,
if States include former LEP students in AYP calculations for LEP
subgroups, this action must be taken on a statewide basis.
Discussion: The Secretary expects each State to have a policy
governing the inclusion of former LEP students in AYP calculations. A
State may certainly establish and apply statewide a uniform policy
requiring all LEAs to include the scores of former LEP students in
their AYP calculations. However, the Secretary believes that a State
should have the discretion to give LEAs the option, based on their
individual circumstances, of deciding whether to include the scores of
former LEP students in the LEP subgroup for AYP calculations. For
example, an LEA with a small LEP population might decide it is not
practical to disaggregate the scores of former LEP students for AYP
purposes.
Changes: None.
Comment: One commenter recommended that the Secretary prohibit
States from including recently arrived LEP students in the State's
assessment participation rate if the State does not count the scores of
these students in determining AYP.
Discussion: The Secretary believes that recently arrived LEP
students should be counted as participants because they are taking the
State's mathematics assessment and English language proficiency
assessment, and they may be taking the State's reading/language arts
assessment as well. A school or LEA should not be penalized in its
participation rate if the scores of recently arrived LEP students are
not included for determining AYP.
Changes: None.
Comment: A few commenters requested that the Secretary extend the
flexibility in proposed Sec. 200.20(f)(2) to students who were
formerly classified as having a disability. The commenters specifically
urged that the regulations be amended to allow the scores of students
with disabilities who are no longer eligible for special education to
be included, for up to two years, in the same manner that they allow
for including the scores of former LEP students. The commenters believe
that the circumstances prompting the proposed regulations for former
LEP students are similar with respect to students with disabilities.
Discussion: On December 15, 2005, the Secretary published in the
Federal Register a notice of proposed rulemaking (70 FR 74624) that
would permit a State, in determining AYP for the students with
disabilities subgroup, to include in that subgroup any student tested
in the current year who had exited special education within the prior
two-year period. The Secretary is currently considering the public
comments she has received on this issue and will address it in response
to the December 15 proposed rules.
Changes: None.
Comment: One commenter pointed out that a State could not take
advantage of the flexibility provided in the regulations if its current
data system does not include the number of years a student has been
``formerly LEP.'' The commenter recommended that the regulations permit
States to include all formerly LEP students in the LEP subgroup through
2005-2006, providing time for the data system to collect new data on
the number of years a student has been ``formerly LEP.''
Discussion: Permitting States to include all former LEP students in
the LEP subgroup through the 2005-2006 school year could significantly
mask the achievement of the LEP subgroup by overweighting it with
former LEP students (including those who have not been LEP for several
years) and, thus, creating the potential for ill-advised decisions
regarding appropriate instructional strategies for this group of
students. A State that improves its data collection procedures to track
former LEP students may take advantage of the flexibility as the data
become available. Thus, in the first year, the State may include in the
AYP calculations for the LEP subgroup the scores for former LEP
students who have been determined to no longer be LEP for one year and,
in the second year, include the scores of all former LEP students who
have been determined to no longer be LEP for one and two years.
Changes: None.
Comment: None.
Discussion: Upon the Department's own internal review of these
regulations, the Secretary believes it is important to clarify how
States and LEAs may implement the flexibility related to including the
scores of former LEP students in calculating and reporting AYP for the
LEP subgroup. If a State or LEA decides to include the scores of former
LEP students in determining AYP, that State or LEA must include the
entire group of former LEP students in such AYP calculations. The
regulations are not intended to permit States and LEAs to pick and
choose which former LEP students to include, or to choose a subset of
former LEP students, such as only former LEP students who score
proficient or higher on State assessments. In other words, if a State
or LEA chooses to take advantage of this flexibility and include the
scores of former LEP students in calculating and reporting AYP, the
State or LEA must include all such defined students.
Changes: We have modified Sec. 200.20(f)(2)(ii) to clarify that,
if a State
[[Page 54192]]
or LEA chooses to include the scores of former LEP students as part of
the LEP subgroup for purposes of calculating and reporting AYP, it must
include the scores of all students it defines as former LEP students.
General Comments
Comment: One commenter noted that States without a student-based
data management system would have to develop such a system in order to
obtain the data necessary to implement these regulations. The commenter
further indicated that, because there are costs associated with the
development of a student-based data management system, there are costs
associated with implementing these regulations.
Discussion: The flexibility afforded by the final regulations is
purely permissive. No State is required to exercise it and, thus, none
is required to incur any additional costs as a result of these
regulations.
Changes: None.
Comment: One commenter requested that the Secretary apply these
regulations retroactively to AYP determinations from the 2002-03 school
year. The commenter argued that schools should not be penalized for
failing to make AYP if they would have made it under the new rules.
Discussion: The Secretary first announced the flexibility included
in these regulations in a letter dated February 20, 2004, and in that
letter permitted States to implement the flexibility provided in these
regulations for AYP decisions based on 2003-2004 assessment data.
Because identification for improvement depends on a school not making
AYP for two consecutive years, a school or district would not be
identified for improvement solely on the basis of the performance of
its LEP subgroup, absent this flexibility, on the State's 2002-2003
assessments. Further, if a school or district did not make AYP for the
LEP subgroup based on the 2003-2004 assessment with this new
flexibility, the determination that the school or district did not make
AYP based also on the 2002-2003 assessment was most likely appropriate.
Changes: None.
Comment: One commenter requested that the final regulations allow
States to count former LEP students for the purposes of determining the
amount of Title III funding a State will receive.
Discussion: The primary purposes of Title III of the ESEA are to
ensure that students who are LEP, as measured against State English
language proficiency standards, attain English language proficiency and
develop high levels of academic attainment; to develop high-quality
instructional programs for LEP students; and to assist States, LEAs,
and schools to build and enhance their capacity to establish,
implement, and sustain language instruction programs for LEP students.
Former LEP students are, by definition, students who, as measured
against State English language proficiency standards and assessments,
have attained English language proficiency. Counting students who are
no longer LEP for the purposes of determining Title III funding would
be contrary to the targeted purposes of the Title III program.
Furthermore, Title III of the ESEA includes explicit statutory
instructions for how funding allocations to States are to be made.
Changes: None.
Executive Order 12866
We have reviewed these final regulations in accordance with
Executive Order 12866. Under the terms of the order, we have assessed
the potential costs and benefits of this regulatory action.
The potential costs associated with the final regulations are those
we have determined to be necessary for administering the requirements
of the statute effectively and efficiently.
In assessing the potential costs and benefits of the final
regulations, we have determined that the benefits of the regulations
justify the costs.
We have also determined that this regulatory action does not unduly
interfere with State, local, and tribal governments in the exercise of
their governmental functions.
We summarized the potential costs and benefits of these final
regulations in the preamble to the NPRM (69 FR 35464). We include
additional discussion of potential costs and benefits in the section of
this preamble titled Analysis of Comments and Changes.
Regulatory Flexibility Act
The Secretary certifies that these regulations will not have a
significant economic impact on a substantial number of small entities.
These provisions require States and LEAs to take certain actions
only if States choose to implement the flexibility these regulations
afford. The Department believes that these activities will be financed
through the appropriations for Title I and other Federal programs and
that the responsibilities encompassed in the law and regulations will
not impose a financial burden that States and LEAs will have to meet
from non-Federal resources.
Paperwork Reduction Act of 1995
The amendments to Sec. 200.6 contain information collection
requirements. Under the Paperwork Reduction Act of 1995, the Department
has submitted a copy of this section to the Office of Management and
Budget (OMB) for its review. The burden hours associated with this data
collection are estimated at 52 hours total, based on each State taking
one hour to report these data in the appropriate form. The Department
is requesting approval of these burden hours as a ``new'' information
collection. However, the Department intends to eventually transfer
these hours to the information collection covered under OMB Control
Number 1810-0581.
This information collection relates to a change in the reporting
requirements already required under Title I, Part A of the ESEA for
States that voluntarily choose to take advantage of the flexibility
afforded by this regulation. States and districts already collect the
number of students exempted from State assessments, and report, on
State and local report cards, the percentage of students not tested
(Section 1111(h)(1)(C)(iii)), disaggregated by student category. The
regulations would add a reporting category, to be reported on State and
local report cards, for the number of students who were not tested
because they were identified as LEP students who are recent arrivals to
the United States.
Each of the 50 States, Puerto Rico, and the District of Columbia
that wishes to take advantage of the flexibility related to recently
arrived LEP students would need to report these data on SEA and LEA
report cards.
There is no appreciable burden associated with the collection as
SEAs and LEAs already report on student exemptions from State
assessments on report cards. The cost for this collection is also
minimal as it is a matter of adding to or recoding SEA and LEA test
exemption collection instruments to include this newly available
exemption option and adding that information to report cards.
In order to take advantage of the flexibility related to recently
arrived LEP students, SEAs and LEAs would have to be able to, and would
want to, account for and track separately the students to which this
exemption would apply in order that those students are not miscounted
as non-participants in the State's reading/language arts assessment for
meeting the 95 percent participation requirement. We estimate annual
reporting and recordkeeping burden for this collection of information
[[Page 54193]]
to average 1 hour for each of the 52 respondents.
If you want to comment on the information collection requirements,
please send your comments to the Office of Information and Regulatory
Affairs, OMB, Room 10235, New Executive Office Building, Washington, DC
20503. You may also send a copy of these comments to the Department's
representative named in the FOR FURTHER INFORMATION CONTACT section of
this document.
We consider your comments on this proposed information collection
in:
Deciding whether the proposed collection is necessary for
the proper performance of our functions, including whether the
information will have practical use;
Evaluating the accuracy of our estimate of the burden of
this proposed collection, including the validity of our methodology and
assumptions;
Enhancing the quality, usefulness, and clarity of the
information we collect; and
Minimizing the burden on those who must respond. This
includes the use of appropriate automated, electronic, mechanical or
other technological collection techniques or other forms of information
technology, e.g. permitting electronic submissions of response.
OMB is required to make a decision concerning the collection of
information contained in this regulation between 30 and 60 days after
the publication of this document in the Federal Register. Therefore, to
ensure that OMB gives your comments full consideration, it is important
that OMB receives the comments within 30 days of publication.
Electronic Access to This Document
You may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe
Portable Document Format (PDF) on the Internet at the following site:
http://www.ed.gov/news/fedregister.
To use PDF you must have Adobe Acrobat Reader, which is available
free at this site. If you have questions about using PDF, call the U.S.
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in
the Washington, DC, area at (202) 512-1530.
Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at: http://www.gpoaccess.gov/nara/index.html
.
(Catalog of Federal Domestic Assistance Number: 84.010 Improving
Programs Operated by Local Educational Agencies)
List of Subjects
34 CFR Part 200
Administrative practice and procedure, Adult education, Children,
Education of children with disabilities, Education of disadvantaged
children, Elementary and secondary education, Eligibility, Family-
centered education, Grant programs--education, Indians--education,
Institutions of higher education, Juvenile Delinquency, Local
educational agencies, Migrant labor, Nonprofit private agencies,
Private schools, Public agencies, Reporting and recordkeeping
requirements, State-administered programs, State educational agencies.
Dated: September 11, 2006.
Margaret Spellings,
Secretary of Education.
0
For the reasons discussed in the preamble, the Secretary amends part
200 of title 34 of the Code of Federal Regulations as follows:
PART 200--TITLE I--IMPROVING THE ACADEMIC ACHIEVEMENT OF THE
DISADVANTAGED
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. Amend Sec. 200.6 as follows:
0
A. Revise the introductory text of the section;
0
B. Revise paragraph (b)(1)(i) introductory text; and
0
C. Add a new paragraph (b)(4).
The revisions and addition read as follows:
Sec. 200.6 Inclusion of all students.
A State's academic assessment system required under Sec. 200.2
must provide for the participation of all students in the grades
assessed in accordance with this section.
* * * * *
(b) * * *
(1) * * *
(i) Consistent with paragraphs (b)(2) and (b)(4) of this section,
the State must assess limited English proficient students in a valid
and reliable manner that includes--
* * * * *
(4) Recently arrived limited English proficient students. (i)(A) A
State may exempt a recently arrived limited English proficient student,
as defined in paragraph (b)(4)(iv) of this section, from one
administration of the State's reading/language arts assessment under
Sec. 200.2.
(B) If the State does not assess a recently arrived limited English
proficient student on the State's reading/language arts assessment, the
State must count the year in which the assessment would have been
administered as the first of the three years in which the student may
take the State's reading/language arts assessment in a native language
under section 1111(b)(3)(C)(x) of the Act.
(C) The State and its LEAs must report on State and district report
cards under section 1111(h) of the Act the number of recently arrived
limited English proficient students who are not assessed on the State's
reading/language arts assessment.
(D) Nothing in paragraph (b)(4) of this section relieves an LEA
from its responsibility under applicable law to provide recently
arrived limited English proficient students with appropriate
instruction to assist them in gaining English language proficiency as
well as content knowledge in reading/language arts and mathematics.
(ii) A State must assess the English language proficiency of a
recently arrived limited English proficient student pursuant to
paragraph (b)(3) of this section.
(iii) A State must assess the mathematics achievement of a recently
arrived limited English proficient student pursuant to Sec. 200.2.
(iv) A recently arrived limited English proficient student is a
student with limited English proficiency who has attended schools in
the United States for less than twelve months. The phrase ``schools in
the United States'' includes only schools in the 50 States and the
District of Columbia.
* * * * *
0
3. Amend Sec. 200.20 as follows:
0
A. Revise paragraphs (a)(1) introductory text, (b) introductory text,
and (c)(1) introductory text; and
0
B. Add a new paragraph (f).
The revisions and addition read as follows:
Sec. 200.20 Making adequate yearly progress.
* * * * *
(a)(1) A school or LEA makes AYP if, consistent with paragraph (f)
of this section--
* * * * *
(b) If students in any group under Sec. 200.13(b)(7) in a school
or LEA do not meet the State's annual measurable objectives under Sec.
200.18, the school or LEA makes AYP if, consistent with paragraph (f)
of this section--
* * * * *
[[Page 54194]]
(c)(1) A school or LEA makes AYP if, consistent with paragraph (f)
of this section--
* * * * *
(f)(1) In determining AYP for a school or LEA, a State may--
(i) Count recently arrived limited English proficient students as
having participated in the State assessments for purposes of meeting
the 95 percent participation requirement under paragraph (c)(1)(i) of
this section if they take--
(A) Either an assessment of English language proficiency under
Sec. 200.6(b)(3) or the State's reading/language arts assessment under
Sec. 200.2; and
(B) The State's mathematics assessment under Sec. 200.2; and
(ii) Choose not to include the scores of recently arrived limited
English proficient students on the mathematics assessment, the reading/
language arts assessment (if administered to these students), or both,
even if these students have been enrolled in the same school or LEA for
a full academic year as defined by the State.
(2)(i) In determining AYP for the subgroup of limited English
proficient students, a State may include, for a period of up to two
years, the scores of students who were limited English proficient but
who no longer meet the State's definition of limited English
proficiency.
(ii) If a State, in determining AYP for the subgroup of limited
English proficient students, includes the scores of the students
described in paragraph (f)(2)(i) of this section, the State must
include the scores of all such students, but is not required to--
(A) Include those students in the limited English proficient
subgroup in determining if the number of limited English proficient
students is sufficient to yield statistically reliable information
under Sec. 200.7(a);
(B) Assess those students' English language proficiency under Sec.
200.6(b)(3); or
(C) Provide English language services to those students.
(iii) For the purpose of reporting information on report cards
under section 1111(h) of the Act--
(A) A State may include the scores of former limited English
proficient students as part of the limited English proficient subgroup
for the purpose of reporting AYP at the State level under section
1111(h)(1)(C)(ii) of the Act;
(B) An LEA may include the scores of former limited English
proficient students as part of the limited English proficient subgroup
for the purpose of reporting AYP at the LEA and school levels under
section 1111(h)(2)(B) of the Act; but
(C) A State or LEA may not include the scores of former limited
English proficient students as part of the limited English proficient
subgroup in reporting any other information under section 1111(h) of
the Act.
[FR Doc. 06-7646 Filed 9-12-06; 8:45 am]
BILLING CODE 4000-01-P