§ 462.12 What procedures does the Secretary use to review the suitability of tests? ( a ) *Review.* ( 1 ) When the Secretary receives a complete application from a test publisher, the Secretary selects experts in the field of educational testing and assessment who possess appropriate advanced degrees and experience in test development or psychometric research, or both, to advise the Secretary on the extent to which a test meets the criteria and requirements in § 462.13.
( 2 ) The Secretary reviews and determines the suitability of a test only if an application— ( i ) Is submitted by a test publisher;
( ii ) Meets the deadline established by the Secretary;
( iii ) Includes a test that— ( A ) Has two or more secure, parallel, equated forms of the same test—either traditional paper and pencil or computer-administered instruments—for which forms are constructed prior to administration to examinees; or
( B ) Is an adaptive test that uses computerized algorithms for selecting and administering items in real time; however, for such an instrument, the size of the item pool and the method of item selection must ensure negligible overlap in items across pre- and post-testing;
( iv ) Includes a test that samples one or more of the major content domains of the NRS educational functioning levels of ABE, ASE or ESL with sufficient numbers of questions to represent adequately the domain or domains; and
( v ) Includes the information prescribed by the Secretary, including the information in § 462.11 of this part.
( b ) *Secretary's determination.* ( 1 ) The Secretary determines whether a test meets the criteria and requirements in § 462.13 after taking into account the advice of the experts described in paragraph (a)(1) of this section.
( 2 ) For tests that contain multiple sub-tests measuring content domains other than those of the NRS educational functioning levels, the Secretary determines the suitability of only those sub-tests covering the domains of the NRS educational functioning levels.
( c ) *Suitable tests.* If the Secretary determines that a test satisfies the criteria and requirements in § 462.13 and, therefore, is suitable for use in the NRS, the Secretary— ( 1 ) Notifies the test publisher of the Secretary's decision; and
( 2 ) Annually publishes in the Federal Register and posts on the Internet at *www.nrsweb.org* a list of the names of tests and test forms and the educational functioning levels the tests are suitable to measure in the NRS. A copy of the list is also available from the U.S. Department of Education, Office of Career, Technical, and Adult Education, Division of Adult Education and Literacy, 400 Maryland Avenue SW., Room 11152, Potomac Center Plaza, Washington, DC 20202-7240.
( d ) *Unsuitable tests.* ( 1 ) If the Secretary determines that a test does not satisfy the criteria and requirements in § 462.13 and, therefore, is not suitable for use in the NRS, the Secretary notifies the test publisher of the Secretary's decision and of the reasons why the test does not meet those criteria and requirements.
( 2 ) The test publisher may resubmit an application to have the suitability of its test determined by the Secretary under this part on October 1 in the year immediately following the year in which the Secretary notifies the publisher. ( i ) An analysis of why the information and documentation submitted meet the criteria and requirements in § 462.13, notwithstanding the Secretary's earlier decision to the contrary; and
( ii ) Any additional documentation and information that address the Secretary's reasons for determining that the test was unsuitable.
( 3 ) The Secretary reviews the additional information submitted by the test publisher and makes a final determination regarding the suitability of the test for use in the NRS. ( i ) If the Secretary's decision is unchanged and the test remains unsuitable for use in the NRS, the Secretary notifies the test publisher, and this action concludes the review process.
( ii ) If the Secretary's decision changes and the test is determined to be suitable for use in the NRS, the Secretary follows the procedures in paragraph (c) of this section.
( e ) *Revocation.* ( 1 ) The Secretary's determination regarding the suitability of a test may be revoked if the Secretary determines that— ( i ) The information the publisher submitted as a basis for the Secretary's review of the test was inaccurate; or
( ii ) A test has been substantially revised—for example, by changing its mode of administration, administration procedures, structure, number of items, content specifications, item types, forms or sub-tests, or number of hours between pre- and post-testing.
( 2 ) The Secretary notifies the test publisher of the— ( i ) Secretary's decision to revoke the determination that the test is suitable for use in the NRS; and
( ii ) Reasons for the Secretary's revocation.
( 3 ) Within 30 days after the Secretary notifies a test publisher of the decision to revoke a determination that a test is suitable for use in the NRS, the test publisher may request that the Secretary reconsider the decision. This request must be accompanied by documentation and information that address the Secretary's reasons for revoking the determination that the test is suitable for use in the NRS.
( 4 ) The Secretary reviews the information submitted by the test publisher and makes a final determination regarding the suitability of the test for use in the NRS.
( 5 ) If the Secretary revokes the determination regarding the suitability of a test, the Secretary publishes in the Federal Register and posts on the Internet at *www.nrsweb.org* a notice of that revocation along with the date by which States and eligible providers must stop using the revoked test. A copy of the notice of revocation is also available from the U.S. Department of Education, Office of Career, Technical, and Adult Education, Division of Adult Education and Literacy, 400 Maryland Avenue SW., Room 11152, Potomac Center Plaza, Washington, DC 20202-7240.
(Authority: 29 U.S.C. 3292)
[73 FR 2315, Jan. 14, 2008, as amended at 81 FR 55552, Aug. 19, 2016]