54188 Federal Register / Vol. 71, No. 177 / Wednesday, September 13, 2006 / Rules and Regulations 

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. 

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 

§ 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 § 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 

§ 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 § 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 § 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 § 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 § 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, 

§ 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 

§ 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 

§ 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 Englishlanguage 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 § 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 § 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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1See, 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. 

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 tenmonth time limit was to provide a limit 

that was the equivalent of one year’s 

worth of instruction. However, a tenmonth 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. 

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 § 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 

§ 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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54190 Federal Register / Vol. 71, No. 177 / Wednesday, September 13, 2006 / Rules and Regulations 

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 

§ 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 § 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 § 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 § 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 § 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 

§ 200.20(f)(2)(ii) to clarify that, if a State 


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54192 Federal Register / Vol. 71, No. 177 / Wednesday, September 13, 2006 / Rules and Regulations 

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 § 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 


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Federal Register / Vol. 71, No. 177 / Wednesday, September 13, 2006 / Rules and Regulations 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, Stateadministered programs, State 

educational agencies. 

Dated: September 11, 2006. 

Margaret Spellings, 

Secretary of Education. 

■ 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 

■ 1. The authority citation for part 200 

continues to read as follows: 

Authority: 20 U.S.C. 6301 through 6578, 

unless otherwise noted. 

■ 2. Amend § 200.6 as follows: 

■ A. Revise the introductory text of the 

section; 

■ B. Revise paragraph (b)(1)(i) 

introductory text; and 

■ C. Add a new paragraph (b)(4). 

The revisions and addition read as 

follows: 

§ 200.6 Inclusion of all students. 

A State’s academic assessment system 

required under § 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 

§ 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 § 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. 

* * * * * 

■ 3. Amend § 200.20 as follows: 

■ A. Revise paragraphs (a)(1) 

introductory text, (b) introductory text, 

and (c)(1) introductory text; and 

■ B. Add a new paragraph (f). 

The revisions and addition read as 

follows: 

§ 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 

§ 200.13(b)(7) in a school or LEA do not 

meet the State’s annual measurable 

objectives under § 200.18, the school or 

LEA makes AYP if, consistent with 

paragraph (f) of this section—

* * * * * 


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54194 Federal Register / Vol. 71, No. 177 / Wednesday, September 13, 2006 / Rules and Regulations 

(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 § 200.6(b)(3) 

or the State’s reading/language arts 

assessment under § 200.2; and 

(B) The State’s mathematics 

assessment under § 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 § 200.7(a); 

(B) Assess those students’ English 

language proficiency under 

§ 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 


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