61580 Federal Register / Vol. 71, No. 201 / Wednesday, October 18, 2006 / Proposed Rules 

DEPARTMENT OF EDUCATION 

34 CFR Part 462 

Measuring Educational Gain in the 

National Reporting System for Adult 

Education 

AGENCY: Office of Vocational and Adult 

Education, Department of Education. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Secretary proposes to 

establish procedures for determining the 

suitability of tests for use in the 

National Reporting System for Adult 

Education (NRS). These proposed 

regulations also include procedures that 

States and local eligible providers 

would follow when using suitable tests 

for NRS reporting. 

DATES: We must receive your comments 

on or before November 17, 2006. 

ADDRESSES: Address all comments about 

these proposed regulations to Sharon A. 

Jones, U.S. Department of Education, 

400 Maryland Avenue, SW., room 

11108, Potomac Center Plaza, 

Washington, DC 20202–7120. If you 

prefer to send your comments through 

the Internet, you may address them to 

us at the U.S. Government Web site: 

www.regulations.gov. 

Or you may send your Internet 

comments to us at the following 

address: NRSregulations@ed.gov. 

You must include the term ‘‘Part 462’’ 

in the subject line of your electronic 

message. 

If you want to comment on the 

information collection requirements, 

you must send your comments to the 

Office of Management and Budget at the 

address listed in the Paperwork 

Reduction Act section of this preamble. 

You may also send a copy of these 

comments to the Department 

representative named in this section. 

FOR FURTHER INFORMATION CONTACT: 

Mike Dean, U.S. Department of 

Education, 400 Maryland Avenue, SW., 

room 11152, Potomac Center Plaza, 

Washington, DC 20202–7240. 

Telephone: (202) 245–7828 or via 

Internet: Mike.Dean@ed.gov. 

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:

Invitation To Comment 

We invite you to submit comments 

regarding these proposed regulations. 

To ensure that your comments have 

maximum effect in developing the final 

regulations, we urge you to identify 

clearly the specific section or sections of 

the proposed regulations that each of 

your comments addresses and to arrange 

your comments in the same order as the 

proposed regulations. 

We invite you to assist us in 

complying with the specific 

requirements of Executive Order 12866 

and its overall requirement of reducing 

regulatory burden that might result from 

these proposed regulations. Please let us 

know of any further opportunities we 

should take to reduce potential costs or 

increase potential benefits while 

preserving the effective and efficient 

administration of the program. 

During and after the comment period, 

you may inspect all public comments 

about these proposed regulations in 

room 11108, 550 12th Street, SW., 

Washington, DC, between the hours of 

8:30 a.m. and 4 p.m., Eastern time, 

Monday through Friday of each week 

except Federal holidays. 

Assistance to Individuals With 

Disabilities in Reviewing the 

Rulemaking Record 

On request, we will supply an 

appropriate aid to an individual with a 

disability who needs assistance to 

review the comments or other 

documents in the public rulemaking 

record for these proposed regulations. If 

you want to schedule an appointment 

for this type of aid, please contact the 

person listed under FOR FURTHER

INFORMATION CONTACT. 

Background 

These proposed regulations further 

the Department’s implementation of 

section 212 of the Adult Education and 

Family Literacy Act (Act), 20 U.S.C. 

9201 et seq., which establishes a system 

to assess the effectiveness of eligible 

agencies in achieving continuous 

improvement of adult education and 

literacy activities. 

Under the Act, the Department 

provides Federal funds to States, which 

then award grants to local eligible 

providers of adult education and 

literacy services. These providers may 

include local educational agencies, 

community-based organizations, 

volunteer literacy organizations, and 

institutions of higher education. 

Accountability for results is a central 

focus of the Act. The Act sets out 

performance accountability 

requirements for States and local 

programs that measure program 

effectiveness on the basis of student 

academic achievement and other 

outcomes. The Act establishes three 

core indicators that must be used to 

assess State performance: 

• Demonstrated improvements in 

literacy skill levels in reading, writing, 

and speaking the English language, 

numeracy, problem solving, English 

language acquisition, and other literacy 

skills as defined by the Secretary 

(educational gain). 

• Placement in, retention in, or 

completion of postsecondary education, 

training, unsubsidized employment, or 

career advancement. 

• Receipt of a secondary school 

diploma or a recognized equivalent. 

The Department and each State reach 

agreement on annual levels of 

performance for each of the core 

indicators, and States annually report 

their actual performance in the NRS. 

In order to help States validly 

demonstrate and accurately report their 

annual improvements in literacy skill 

levels and other core indicators of 

performance, and after extensive 

consultation with State directors of 

adult education, representatives from 

volunteer provider agencies, directors of 

local adult education programs, and 

experts on accountability systems, the 

Department established the NRS. The 

NRS standardizes the measurement of 

the core indicators across States and 

establishes procedures for collecting 

and reporting student outcome data to 

enhance the data’s validity and 

reliability. 

To further assist States, the 

Department also issued Implementation 

Guidelines: Measures and Methods for 

the National Reporting System for Adult 

Education (Guidelines), which 

established reporting requirements, data 

collection policies, and common 

definitions for each of the core outcome 

measures or indicators. (The Guidelines 

are on the Internet at http:// 

www.nrsweb.org). As set forth in the 

Guidelines, the NRS measures 

educational gain by defining, using 

standardized tests, a set of educational 

functioning levels at which students are 

initially placed based on their abilities 

to perform literacy-related tasks in 

specific skill areas. After a specific time 

period or number of instructional hours 

established by the State, students are 

again assessed to determine their skill 

levels. If a student’s skills have 

improved sufficiently to be placed one 

or more levels higher, the student is 

considered to have made an educational 

gain. 

The Guidelines identify a number of 

standardized tests (along with the tests’ 


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benchmarks for the NRS educational 

functioning levels) that are currently 

acceptable for States to use in measuring 

educational gain. However, the 

Guidelines do not require States to use 

only the standardized tests listed. If a 

State wishes to allow local eligible 

providers to use some other 

standardized test for this purpose, the 

State must take into account the factors 

identified in the Guidelines and must 

demonstrate to the Department that the 

particular alternate test proposed to be 

used satisfactorily addresses those 

factors. 

Currently, the Department uses 

experts in the field of educational 

testing and assessment to assist us in 

reviewing tests for their suitability for 

use in the NRS. These 

psychometricians, using the same 

criteria for assessing tests that are 

contained in the Guidelines and these 

proposed regulations, review tests and 

make recommendations to the Secretary 

regarding the appropriateness of the 

tests. The Secretary determines, taking 

into account the experts’

recommendations, whether a test is 

suitable for use in the NRS. 

Until these regulations become 

effective, the Secretary will continue to 

use (1) the guidance provided in the 

Guidelines and (2) the Department’s 

current process for providing States and 

test publishers an opportunity to 

demonstrate that alternate tests are 

suitable for NRS purposes. 

Through these proposed regulations, 

we intend to formalize the process for 

the review and approval of tests for use 

in the NRS. We believe that the uniform 

process we are proposing will facilitate 

test publishers’ submission of tests to 

the Department for review and help to 

strengthen the integrity of the NRS as a 

critical tool for measuring State 

performance. The proposed process also 

will provide an established means for 

examining tests that are currently 

approved for use in the NRS but have 

not been updated recently and, 

therefore, need to be reassessed for their 

continuing validity. 

Significant Proposed Regulations 

We discuss substantive issues under 

the sections of the proposed regulations 

to which they pertain. 

Proposed § 462.3 provides the 

meanings of terms, including some from 

the Act, used in these regulations. We 

define these terms so that there is a 

common understanding of how the 

terms are used in the regulations, and 

because the terms will affect the validity 

of data collected and reported in the 

NRS. In that regard, the terms adult 

basic education (ABE), adult secondary 

education (ASE), English-as-a-second 

language (ESL), adult education 

population, content domains or NRS 

skill areas, educational functioning 

levels, Guidelines, local eligible 

provider, and State connect the 

regulations to the terms used in the 

NRS. The definitions of the terms test, 

test administrator, and test publisher 

provide standardization, which is 

particularly needed given the different 

meanings and synonyms currently used 

for these terms. For example, in 

describing the tests used to determine 

educational functioning levels and to 

measure educational gain, States and 

local eligible providers inconsistently 

use the terms test, assessment, and 

instrument. By clearly defining 

terminology, the regulations would 

eliminate confusion, identify a 

particular term to be used when 

describing or referencing a specific 

circumstance, and provide a shared 

understanding of how the term is used 

in the regulations. 

Proposed § 462.4 provides the 

deadline, June 30, 2008, by which States 

and local eligible providers would stop 

using tests, including those currently 

listed in the Guidelines, that the 

Secretary determines are not suitable for 

use in the NRS. After June 30, 2008, 

States and local eligible providers 

would use only tests that the Secretary 

has reviewed and considered suitable 

for use in the NRS under these 

regulations. We believe a June 30, 2008, 

deadline provides adequate time for the 

Secretary to complete at least one 

review of tests and determine their 

suitability, and then, if necessary, for 

States and local eligible providers to 

transition their accountability systems 

from use of unsuitable tests to suitable 

tests. We are particularly interested in 

your comments on whether June 30, 

2008 provides enough time for States 

and local eligible providers to make the 

transition to suitable tests. 

Proposed § 462.10(a) would provide 

that the Secretary reviews tests only 

from test publishers, i.e., an entity, 

individual, organization, or agency that 

owns a registered copyright of a test, or 

is licensed by the copyright holder to 

sell or distribute a test. In this way, only 

an entity that has a vested interest in 

and a great deal of knowledge about a 

test could request the Secretary’s review 

of a test. These entities have an in-depth 

knowledge of a test’s development, 

maintenance, content validity, match of 

scores to the NRS educational 

functioning levels, reliability, and 

construct validity, and, as a result, 

would be able to respond to questions 

the Secretary may raise during the 

review process. As importantly, test 

publishers would also be able to readily 

make tests available to States and local 

eligible providers for use in the NRS. 

Proposed § 462.10(b) would offer test 

publishers an annual opportunity, by 

October 1 of each year, to submit tests 

for the Secretary’s review. However, 

because we anticipate that these 

regulations will be published as final 

regulations after October 1, 2006, the 

Secretary plans to announce in the 

Federal Register the date for the first 

opportunity for test publishers to submit 

tests for review. The date of the first 

opportunity for test publishers to submit 

tests will be no earlier than the effective 

date of the final regulations. On that 

date, test publishers could begin to 

request that the Secretary determine the 

suitability of their tests using the 

standards and procedures established in 

the final regulations. States and local 

eligible providers could immediately 

use tests once they have been 

determined suitable by the Secretary 

under these regulations. The annual 

review proposed in § 462.10(b) would 

provide the Department with adequate 

time to review tests; review any 

additional information provided by test 

publishers; and notify test publishers, 

States, and local eligible providers that 

additional tests are eligible for use in 

the NRS. By receiving tests beginning in 

October, the Secretary would be able to 

synchronize the review of tests with the 

operations of the adult education 

programs, especially the data collection 

process. 

Proposed § 462.11 would delineate 

the information that a test publisher 

must include in an application so that 

the Secretary may determine the 

suitability of a test, whether the test is 

being submitted for the first time or 

resubmitted because, for example, it has 

been substantively revised. These 

proposed regulations would continue 

the Department’s practice of having test 

publishers submit information that 

supports the reliability and validity of 

their tests. This is the information that 

experts in the field of educational 

testing and assessment will need in 

order to advise the Secretary on the 

extent to which a particular test meets 

the criteria and requirements in § 462.13 

for determining the suitability of tests. 

Section 462.11(j) describes the 

additional information test publishers 

would include in an application 

requesting the review of a previous test, 

for example, a test that was used to 

measure educational gain in the NRS 

before the effective date of these 

regulations or was first published five 

years or more before the date it is 

submitted to the Secretary for review. 

The Secretary reviews this information 


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to determine whether a test continues to 

reflect NRS educational functioning 

levels. 

Proposed § 462.12 would describe the 

Secretary’s process for reviewing and 

determining the suitability of tests for 

determining educational functioning 

levels and measuring educational gain. 

Annually, at the conclusion of the 

review process, the Secretary would 

publish a list of suitable tests in the 

Federal Register and post the list on the 

Internet at http://www.nrsweb.org. 

Copies of the list would also be 

available from the Department. 

Proposed § 462.12 would establish the 

procedure the Secretary would use to 

make a determination about the 

suitability of tests, to notify test 

publishers of the Secretary’s decision, to 

provide an opportunity for test 

publishers to request that the Secretary 

reconsider a decision that a test is 

unsuitable, to conclude the review 

process upon any reconsideration, to 

revoke the Secretary’s determination 

that a test is suitable, and to notify 

affected parties of the revocation. 

Further, proposed § 462.12(a)(2) 

identifies the circumstances when the 

Secretary would determine the 

suitability of a test. Proposed § 462.12 

clearly delineates the formal, reasoned, 

and uniform process the Secretary 

would use to determine the suitability 

of tests and provides an opportunity for 

test publishers and others to suggest 

improvements to that process. 

Proposed § 462.13 provides that in 

order to be determined suitable, tests 

would determine the NRS educational 

functioning levels of members of the 

adult education population; sample one 

or more of the major content domains of 

the NRS educational functioning levels 

of Adult Basic Education, Adult 

Secondary Education, English-as-asecond Language, or all three; meet the 

applicable and feasible standards for 

test construction provided in the 1999 

edition of the Standards for Educational 

and Psychological Testing; contain the 

test publisher’s guidelines for retesting; 

and have two or more secure, parallel, 

equated forms. Proposed § 462.13 would 

also establish that the size of the item 

pool and the method of item selection 

for computerized adaptive tests must 

ensure negligible overlap in items across 

pre- and post-test. Finally, proposed 

§ 462.13 would establish the 

requirements for tests that have been 

modified for an individual with a 

disability. Proposed § 462.13 is 

necessary because it would notify test 

publishers of the criteria and 

requirements the Secretary would use to 

determine the suitability of tests. Since 

the information provided in a test 

publisher’s application must ultimately 

demonstrate that a test meets the criteria 

and requirements in § 462.13, this 

section would be beneficial to test 

publishers because it contains, in one 

place, information a test publisher can 

use to decide whether to submit an 

application. After reviewing § 462.13, a 

test publisher could decide to save its 

resources rather than prepare an 

application for a test that does not meet 

the criteria and requirements in the 

regulations and, as a result, would be 

determined unsuitable. 

Proposed § 462.14 would establish a 

seven-year period during which a test 

determined as suitable would remain 

eligible for use in the NRS, unless the 

test publisher substantially revises the 

test—for example, by changing its 

structure, number of items, content 

specifications, item types, or sub-tests. 

The Secretary believes that having a test 

remain suitable for seven years helps to 

ensure greater consistency for State and 

local accountability systems, improves 

the reliability for data collected and 

reported in the NRS, and reduces the 

amount of disruption to State and local 

programs if suitable tests are later found 

to be unsuitable and, therefore, can no 

longer be used in the NRS. The 

regulations also would establish that the 

Secretary may determine that a test is 

suitable for use in the NRS for fewer 

than seven years. Proposed § 462.14 

would clarify for test publishers how 

often and under which circumstances a 

test must be reviewed by the Secretary. 

Proposed §§ 462.40 through 462.44 

would codify a number of existing NRS 

practices regarding activities such as 

determining educational functioning 

levels, administering tests, student 

placement, measuring educational gain, 

and State assessment policy. Proposed 

§§ 462.40 through 462.44 are necessary 

because they would establish what the 

Department deems is an efficient and 

effective means of obtaining accurate, 

reliable, and valid data for reporting in 

the NRS. 

Executive Order 12866 

1. Potential Costs and Benefits 

Under Executive Order 12866, we 

have assessed the potential costs and 

benefits of this regulatory action. 

The potential costs associated with 

the proposed regulations are those 

resulting from statutory requirements 

and those we have determined to be 

necessary for administering this 

program effectively and efficiently. 

Elsewhere in this SUPPLEMENTARY

INFORMATION section, we identify and 

explain burdens specifically associated 

with information collection 

requirements. See the heading 

Paperwork Reduction Act of 1995. 

In assessing the potential costs and 

benefits—both quantitative and 

qualitative—of this regulatory action, 

we have determined that the benefits 

would justify the costs. 

We have also determined that this 

regulatory action would not unduly 

interfere with State, local, and tribal 

governments in the exercise of their 

governmental functions. 

Summary of Potential Costs and 

Benefits 

Elsewhere in this preamble, under the 

headings Significant Proposed 

Regulations and Regulatory Flexibility 

Act Certification, we discuss the 

potential costs and benefits of these 

proposed regulations. 

2. Clarity of the Regulations 

Executive Order 12866 and the 

Presidential Memorandum on ‘‘Plain 

Language in Government Writing’’

require each agency to write regulations 

that are easy to understand. 

The Secretary invites comments on 

how to make these proposed regulations 

easier to understand, including answers 

to questions such as the following: 

• Are the requirements in the 

proposed regulations clearly stated? 

• Do the proposed regulations contain 

technical terms or other wording that 

interferes with their clarity? 

• Does the format of the proposed 

regulations (grouping and order of 

sections, use of headings, paragraphing, 

etc.) aid or reduce their clarity? 

• Would the proposed regulations be 

easier to understand if we divided them 

into more (but shorter) sections? (A 

‘‘section’’ is preceded by the symbol ‘‘§’’

and a numbered heading; for example, 

§ 462.1 What is the scope of this part?) 

• Could the description of the 

proposed regulations in the 

SUPPLEMENTARY INFORMATION section of 

this preamble be more helpful in 

making the proposed regulations easier 

to understand? If so, how? 

• What else could we do to make the 

proposed regulations easier to 

understand? 

Send any comments that concern how 

the Department could make these 

proposed regulations easier to 

understand to the person listed in the 

ADDRESSES section of the preamble. 

Regulatory Flexibility Act Certification 

The Secretary certifies that these 

proposed regulations would not have a 

significant economic impact on a 

substantial number of small entities 

because they would not impose 

excessive regulatory burdens or require 


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unnecessary Federal supervision. The 

proposed regulations would impose 

minimal requirements to ensure the 

proper expenditure of program funds. 

These proposed regulations would 

affect States, a few test publishers, and 

local eligible providers of adult 

education programs that receive funding 

under the Act. 

States and State agencies are not 

defined as ‘‘small entities’’ in the 

Regulatory Flexibility Act. 

The U.S. Small Business 

Administration Size Standards classify 

test publishers as a ‘‘small business’’ if 

they are organized for profit, have total 

annual revenue below $6.5 million, and 

have 100 or fewer employees. The U.S. 

Small Business Administration Size 

Standards classify local eligible 

providers as (a) ‘‘small organizations,’’

which means any not-for profit 

enterprise that is independently owned 

and operated and is not dominant in its 

field or (b) ‘‘small governmental 

jurisdictions,’’ which means 

governments of cities, counties, towns, 

townships, village, school districts, or 

special districts with a population of 

less than fifty thousand. 

The proposed regulations would 

benefit both small and large entities by 

providing one uniform process for 

reviewing tests that are used to measure 

educational gain in the NRS. This 

process would relieve States of the 

burden of using their limited resources 

to review tests. It would also reduce the 

amount of resources test publishers 

would expend to have tests reviewed by 

individual States. Under the proposed 

regulations, test publishers would have 

their tests reviewed by only the 

Department instead of by each State that 

intends to use their tests. Thus entities, 

both small and large, would experience 

a positive economic impact as a result 

of these proposed regulations. 

Paperwork Reduction Act of 1995 

Sections 462.10, 462.11, 462.12, 

462.13, and 462.14 contain new 

information collection requirements. 

Under the Paperwork Reduction Act of 

1995 (44 U.S.C. 3507(d)), the 

Department of Education has submitted 

a copy of these sections to the Office of 

Management Budget (OMB) for its 

review. Sections 462.4 and 462.40 

through 462.44 contain information 

collection requirements approved by 

OMB under Control Number 1830–0027 

for existing NRS practices. 

Collection of Information: Measuring 

Educational Gain in the National 

Reporting System for Adult Education. 

Under these proposed regulations, test 

publishers would request the Secretary’s 

review of tests that measure educational 

gain. The collection of information 

includes the following: 

(a) Specific information concerning a 

test’s development, maintenance, 

content validity, match scores, 

reliability, validity, and the extent to 

which the test meets applicable and 

feasible standards for test construction. 

(b) Specifications on how tests will be 

administered at the local eligible 

provider level. 

(c) Existing NRS practices regarding 

determining educational functioning 

levels, administering tests, student 

placement, State assessment policy, and 

measuring educational gain in the NRS 

that have been approved by OMB under 

Control Number 1830–0027. 

The Department would use this 

information to (a) determine the 

suitability of tests for use in the NRS 

and (b) judge program performance, 

including eligibility for incentive grants. 

The collection of information would 

be provided when (a) a test publisher 

wishes the Secretary to determine the 

suitability of its test for use in the NRS 

and (b) States and local eligible 

providers measure and report 

educational gain under the NRS. 

Once the Secretary determines that a 

test is suitable for use in the NRS, a test 

could be used in the NRS for seven 

years. After that time, the test publisher 

could again submit the test to the 

Secretary for review, or the test could no 

longer be used in the NRS. We estimate 

reporting and recordkeeping burden for 

an application requesting the Secretary 

to determine the suitability of a test for 

use in the NRS to average 40 hours for 

each response, including the time for 

reviewing instructions, searching 

existing data sources, gathering and 

maintaining the data needed, 

completing and reviewing the collection 

of information, and responding to 

questions the Secretary may have. While 

the collection of information is 

necessarily inclusive, it would request 

merely the data test publishers can 

reasonably be expected to have on hand 

to support their claims regarding the 

appropriateness and effectiveness of 

their test or tests, including whether the 

test meets applicable and feasible 

standards for test construction in the 

1999 edition of the Standards for 

Educational and Psychological Testing. 

Much of the information is routinely 

included in the technical manual and 

the test administrator’s manual that are 

provided with a test. 

While we cannot estimate the total 

number of respondents, because it is 

impossible to know the number of test 

publishers that may want to expand 

their markets into the field of adult 

education, we are aware of: (a) 25 tests 

that test publishers may ask the 

Secretary to review for suitability for 

use in the NRS and (b) 25 widely used 

tests of an adult’s basic skills that have 

been in use in the NRS since 1999 and 

that would need to be reviewed by the 

Secretary after these regulations become 

effective if they are to continue to be 

used in the NRS. Therefore, we estimate 

the total reporting burden for this 

collection to be 2,000 hours (50 × 40). 

This estimate does not include the 

reporting burden associated with (a) the 

actual use of a test to measure 

educational gain and (b) existing NRS 

practices regarding determining 

educational functioning levels, 

administering tests, student placement, 

State assessment policy, and measuring 

educational gain in the NRS because 

that burden has been approved by OMB 

under Control Number 1830–0027. 

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; 

Attention: Desk Officer for U.S. 

Department of Education. You may also 

send a copy of these comments to the 

Department representative named in the 

ADDRESSES section of this preamble. 

We consider your comments on these 

proposed collections of information in—

• Deciding whether the proposed 

collections are 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 the proposed 

collections, including the validity of our 

methodology and assumptions; 

• Enhancing the quality, usefulness, 

and clarity of the information we 

collect; and 

• Minimizing the burden of those 

who must respond. This includes 

exploring the use of appropriate 

automated, electronic, mechanical, or 

other technological collection 

techniques or other forms of information 

technology; e.g., permitting electronic 

submissions of responses. 

OMB is required to make a decision 

concerning the collections of 

information contained in these 

proposed regulations between 30 and 60 

days after 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. This does not affect 

the deadline for your comments to us on 

the proposed regulations. 


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Intergovernmental Review 

These regulations are subject to 

Executive Order 12372 and the 

regulations in 34 CFR part 79. One of 

the objectives of the Executive Order is 

to foster an intergovernmental 

partnership and a strengthened 

federalism. The Executive Order relies 

on processes developed by State and 

local governments for coordination and 

review of proposed Federal financial 

assistance. 

This document provides early 

notification of our specific plans and 

actions for this program. 

Assessment of Educational Impact 

The Secretary particularly requests 

comments on whether these proposed 

regulations would require transmission 

of information that any other agency or 

authority of the United States gathers or 

makes available. 

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 does not apply) 

List of Subjects in 34 CFR Part 462 

Administrative practice, Adult 

education, Grants program—education, 

Incorporation by reference, and 

Reporting and recordkeeping 

requirements. 

Dated: October 11, 2006. 

Margaret Spellings, 

Secretary of Education. 

For the reasons discussed in the 

preamble, the Secretary proposes to 

amend title 34 of the Code of Federal 

Regulations by adding a new part 462 to 

read as follows: 

PART 462—MEASURING 

EDUCATIONAL GAIN IN THE 

NATIONAL REPORTING SYSTEM FOR 

ADULT EDUCATION 

Subpart A—General 

Sec. 

462.1 What is the scope of this part? 

462.2 What regulations apply? 

462.3 What definitions apply? 

462.4 What are the transition rules for using 

tests to measure educational gain for the 

National Reporting System for Adult 

Education (NRS)? 

Subpart B—What Process Does the 

Secretary Use to Review the Suitability of 

Tests for Use in the NRS? 

462.10 How does the Secretary review 

tests? 

462.11 What must an application contain? 

462.12 What procedures does the Secretary 

use to review the suitability of tests? 

462.13 What criteria and requirements does 

the Secretary use for determining the 

suitability of tests? 

462.14 How often and under what 

circumstances must a test be reviewed by 

the Secretary? 

Subpart C—[Reserved] 

Subpart D—What Requirements Must 

States and Local Eligible Providers Follow 

When Measuring Educational Gain? 

462.40 Must a State have an assessment 

policy? 

462.41 How must tests be administered in 

order to accurately measure educational 

gain? 

462.42 How are tests used to place students 

at an NRS educational functioning level? 

462.43 How is educational gain measured? 

462.44 Which educational functioning 

levels must States and local eligible 

providers use to measure and report 

educational gain in the NRS? 

Authority: 20 U.S.C. 9212, unless 

otherwise noted. 

Subpart A—General 

§ 462.1 What is the scope of this part? 

These regulations establish the—

(a) Procedures the Secretary uses to 

determine the suitability of 

standardized tests for use in the 

National Reporting System for Adult 

Education (NRS) to measure educational 

gain of participants in an adult 

education program required to report 

under the NRS; and 

(b) Procedures States and local 

eligible providers must follow when 

measuring educational gain for use in 

the NRS. 

(Authority: 20 U.S.C. 9212) 

§ 462.2 What regulations apply? 

The following regulations apply to 

this part: 

(a) The Education Department General 

Administrative Regulations (EDGAR) as 

follows: 

(1) 34 CFR part 74 (Administration of 

Grants and Agreements with Institutions 

of Higher Education, Hospitals, and 

Other Non-Profit Organizations). 

(2) 34 CFR part 75 (Direct Grant 

Programs). 

(3) 34 CFR part 77 (Definitions that 

Apply to Department Regulations). 

(4) 34 CFR part 79 (Intergovernmental 

Review of Department of Education 

Programs and Activities). 

(5) 34 CFR part 80 (Uniform 

Administrative Requirements for Grants 

and Cooperative Agreements to State 

and Local Governments). 

(6) 34 CFR part 81 (General Education 

Provisions Act—Enforcement). 

(7) 34 CFR part 82 (New Restrictions 

on Lobbying). 

(8) 34 CFR part 84 (Governmentwide 

Requirements for Drug-Free Workplace 

(Financial Assistance)). 

(9) 34 CFR part 85 (Governmentwide 

Debarment and Suspension 

(Nonprocurement)). 

(10) 34 CFR part 86 (Drug and Alcohol 

Abuse Prevention). 

(11) 34 CFR part 97 (Protection of 

Human Subjects). 

(12) 34 CFR part 98 (Student Rights in 

Research, Experimental Programs, and 

Testing). 

(13) 34 CFR part 99 (Family 

Educational Rights and Privacy). 

(b) The regulations in this part 462. 

(Authority: 20 U.S.C. 9212) 

§ 462.3 What definitions apply? 

(a) Definitions in the Adult Education 

and Family Literacy Act (Act). The 

following terms used in these 

regulations are defined in section 203 of 

the Adult Education and Family 

Literacy Act, 20 U.S.C. 9202 (Act): 

Adult education 

Eligible provider 

Individual of limited English 

proficiency 

Individual with a disability 

Literacy 

(b) Other definitions. The following 

definitions also apply to this part: 

Adult basic education (ABE) means 

instruction designed for an adult whose 

educational functioning level is 

equivalent to a particular ABE literacy 

level listed in the NRS educational 

functioning level table in § 462.44. 

Adult education population means 

individuals—

(1) Who are 16 years of age or older; 

(2) Who are not enrolled in secondary 

school; and 

(3) Who—

(i) Lack sufficient mastery of basic 

educational skills to enable the 

individuals to function effectively in 

society; 


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(ii) Do not have a secondary school 

diploma or its recognized equivalent, 

and have not achieved an equivalent 

level of education; or 

(iii) Are unable to speak, read, or 

write the English language. 

Adult secondary education (ASE) 

means instruction designed for an adult 

whose educational functioning level is 

equivalent to a particular ASE literacy 

level listed in the NRS educational 

functioning level table in § 462.44. 

Content domains or NRS skill areas 

mean, for the purpose of the NRS, 

reading, writing, and speaking the 

English language, numeracy, problem 

solving, English language acquisition, 

and other literacy skills as defined by 

the Secretary. 

Educational functioning levels mean 

the ABE, ASE, and ESL literacy levels, 

as provided in § 462.44, that describe a 

set of skills and competencies that 

students demonstrate in the NRS skills 

areas. 

English-as-a-second language (ESL) 

means instruction designed for an adult 

whose educational functioning level is 

equivalent to a particular ESL literacy 

level listed in the NRS educational 

functioning level table in § 462.44. 

Guidelines means the Implementation 

Guidelines: Measures and Methods for 

the National Reporting System for Adult 

Education (also known as NRS 

Implementation Guidelines) posted on 

the Internet at: http://www.nrsweb.org. 

A copy of the Guidelines is also 

available from the U.S. Department of 

Education, Division of Adult Education 

and Literacy, 400 Maryland Avenue, 

SW., room 11159, Potomac Center Plaza, 

Washington, DC 20202–7240. 

Local eligible provider means an 

‘‘eligible provider’’ as defined in the Act 

that operates an adult education 

program that is required to report under 

the NRS. 

State means ‘‘State’’ and ‘‘Outlying 

area’’ as defined in the Act. 

Test means a standardized test, 

assessment, or instrument that has a 

formal protocol on how it is to be 

administered. These protocols include, 

for example, the use of parallel, equated 

forms, testing conditions, time allowed 

for the test, standardized scoring, and 

the amount of instructional time a 

student needs before post-testing. 

Violation of these protocols often 

invalidates the test. 

Test administrator means an 

individual who is trained to administer 

tests the Secretary determines to be 

suitable under this part. 

Test publisher means an entity, 

individual, organization, or agency that 

owns a registered copyright of a test, or 

is licensed by the copyright holder to 

sell or distribute a test. 

(Authority: 20 U.S.C. 9202, 9212) 

§ 462.4 What are the transition rules for 

using tests to measure educational gain for 

the National Reporting System for Adult 

Education (NRS)? 

A State or a local eligible provider 

may continue to measure educational 

gain for the NRS using a test that was 

identified in the Guidelines until June 

30, 2008. After that time, States and 

local eligible providers must use only 

tests that the Secretary has reviewed 

and determined to be suitable for use in 

the NRS under this part. (Approved by 

the Office of Management and Budget 

under control number 1830–0027) 

(Authority: 20 U.S.C. 9212) 

Subpart B—What Process Does the 

Secretary Use to Review the Suitability 

of Tests for Use in the NRS? 

§ 462.10 How does the Secretary review 

tests? 

(a) The Secretary only reviews tests 

under this part that are submitted by a 

test publisher. 

(b) A test publisher that wishes to 

have the suitability of its test 

determined by the Secretary under this 

part must submit an application to the 

Secretary by October 1 of each year and 

in the manner the Secretary may 

prescribe. 

(Authority: 20 U.S.C. 9212) 

§ 462.11 What must an application 

contain? 

(a) Application content and format. 

(1) In order for the Secretary to 

determine whether a standardized test is 

suitable for measuring the gains of 

participants in an adult education 

program required to report under the 

NRS, a test publisher must include with 

its application information listed in 

paragraphs (b) through (i) of this 

section, as well as the applicable 

information in paragraph (j) of this 

section. 

(2) A test publisher must arrange the 

information in its application in the 

order it is presented in paragraphs (b) 

through (j) of this section. 

(3) A test publisher must submit to 

the Secretary three copies of its 

application. 

(b) General information. (1) A 

statement, in the technical manual for 

the test, of the intended purpose of the 

test and of how the test will allow 

examinees to demonstrate the skills that 

are associated with the NRS educational 

functioning levels in § 462.44. 

(2) The name, address, e-mail address, 

and telephone and fax numbers of a 

contact person to whom the Secretary 

may address inquiries. 

(3) A summary of the precise editions, 

forms, levels, and, if applicable, subtests and abbreviated tests that the test 

publisher is requesting that the 

Secretary review and determine to be 

suitable for use in the NRS. 

(c) Development. Documentation of 

how the test was developed, including 

a description of—

(1) The nature of samples of 

examinees administered the test during 

pilot or field testing, for example—

(i) The number of examinees 

administered each item; 

(ii) How similar were the sample or 

samples of examinees used to develop 

and evaluate the test to the adult 

education population of interest to the 

NRS; and 

(iii) The steps, if any, taken to ensure 

that the examinees were motivated 

while responding to the test; and 

(2) The steps taken to ensure the 

quality of test items or tasks, for 

example—

(i) The extent to which items or tasks 

on the test have been reviewed for 

fairness and sensitivity; and 

(ii) The extent to which items or tasks 

on the test have been screened for the 

adequacy of their psychometric 

properties. 

(d) Maintenance. Documentation of 

how the test is maintained, including a 

description of—

(1) How frequently, if ever, new forms 

of the test are developed; 

(2) The steps taken to ensure the 

comparability of scores across forms of 

the test; 

(3) The steps taken to maintain the 

security of the test; and 

(4) A history of the test’s use. 

(e) Match of content to the NRS 

educational functioning levels (content 

validity). Documentation of the extent to 

which the items or tasks on the test 

cover the skills in the NRS educational 

functioning levels in § 462.44, 

including—

(1) Whether the items or tasks on the 

test require the types and levels of skills 

used to describe the NRS educational 

functioning levels; 

(2) Whether the items or tasks 

measure skills that are not associated 

with the NRS educational functioning 

levels; 

(3) Whether aspects of a particular 

NRS educational functioning level are 

not covered by any of the items or tasks; 

(4) Whether there are items or tasks 

that are not associated with any of the 

NRS educational functioning levels; 

(5) The procedures used to establish 

the content validity of the test; 

(6) The number of subject-matter 

experts who provided judgments linking 


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the items or tasks to the educational 

functioning levels, and their 

qualifications for doing so, particularly 

their familiarity with adult education 

and the NRS educational functioning 

levels; and 

(7) The extent to which the judgments 

of the subject matter experts agree. 

(f) Match of scores to NRS educational 

functioning levels. Documentation of the 

adequacy of the procedure used to 

translate the performance of an 

examinee on a particular test to an 

estimate of the examinee’s standing 

with respect to the NRS educational 

functioning levels in § 462.44, 

including—

(1) The standard-setting procedures 

used to establish cut scores for 

transforming raw or scale scores on the 

test into estimates of an examinee’s NRS 

educational functioning level; 

(2) If judgment-based procedures were 

used—

(i) The number of subject matter 

experts who provided judgments, and 

their qualifications; and 

(ii) Evidence of the extent to which 

the judgments of subject-matter experts 

agree; 

(3) The standard error of each cut 

score, and how it was established; and 

(4) The extent to which the cut scores 

might be expected to differ if they had 

been established by a different (though 

similar) panel of experts. 

(g) Reliability. Documentation of the 

degree of consistency in performance 

across different forms of the test in the 

absence of any external interventions, 

including—

(1) The correlation between raw (or 

number-correct) scores across alternate 

forms of the test; 

(2) The consistency with which 

examinees are classified into the same 

NRS educational functioning levels 

across forms of the test. Information 

regarding classification consistency 

should be reported for each NRS 

educational functioning level that the 

test is being considered for use in 

measuring; 

(3) The adequacy of the research 

design leading to the estimates of the 

reliability of the test, including—

(i) The size of the sample; 

(ii) The similarity between the sample 

used in the data collection and the adult 

education population; and 

(iii) The steps taken to ensure the 

motivation of the examinees; and 

(4) Any other information explaining 

the methodology and procedures used 

to measure the reliability of the test. 

(h) Construct validity. Documentation 

of the appropriateness of a given test for 

measuring educational gain for the NRS, 

i.e., documentation that the test 

measures what it is intended to 

measure, including—

(1) The extent to which the raw or 

scale scores and the educational 

functioning classifications associated 

with the test correlate (or agree) with 

scores or classifications associated with 

other tests designed or intended to 

assess educational gain in the same 

adult education population as the NRS; 

(2) The extent to which the raw or 

scale scores are related to other relevant 

variables, such as hours of instruction or 

other important process or outcome 

variables; 

(3) The adequacy of the research 

designs associated with these sources of 

evidence (see paragraph (g)(3) of this 

section); and 

(4) Other evidence demonstrating that 

the test measures gains in educational 

functioning resulting from adult 

education, and not some other 

construct-irrelevant variables, such as 

practice effects. 

(i) Other information. (1) A 

description of the manner in which testtaking time was determined in relation 

to the content domains of the NRS 

educational functioning levels, and an 

analysis of the effects of time on 

performance. 

(2) Additional guidance on the 

interpretation of scores resulting from 

any modifications of the tests for an 

individual with a disability. 

(3) The manual provided to test 

administrators containing procedures 

and instructions for test security and 

administration. 

(4) A description of the training or 

certification required of test 

administrators and scorers by the test 

publisher. 

(5) A description of retesting 

procedures and the analysis upon which 

the criteria for retesting are based. 

(6) Such other evidence as the 

Secretary may determine is necessary to 

establish the test’s compliance with the 

criteria and requirements the Secretary 

uses to determine the suitability of tests 

as provided in § 462.13. 

(j) Previous tests. (1) For a test used 

to measure educational gain in the NRS 

before the effective date of these 

regulations that is being submitted to 

the Secretary for review under this part, 

the test publisher must provide 

documentation of periodic review of the 

content and specifications of the test to 

ensure that the test continues to reflect 

NRS educational functioning levels. 

(2) For a test first published five years 

or more before the date it is submitted 

to the Secretary for review under this 

part, the test publisher must provide 

documentation of periodic review of the 

content and specifications of the test to 

ensure that the test continues to reflect 

NRS educational functioning levels. 

(3) For a test that has not changed in 

the seven years since the Secretary 

determined, under § 462.13, that it was 

suitable for use in the NRS that is again 

being submitted to the Secretary for 

review under this part, the test 

publisher must provide new data 

supporting the validity of the test. 

(4) If a test has been substantially 

revised—for example by changing its 

structure, number of items, content 

specifications, item types, or sub-tests—

from the most recent edition reviewed 

by the Secretary under this part, the test 

publisher must provide an analysis of 

the revisions, including the reasons for 

the revisions, the implications of the 

revisions for the comparability of scores 

on the current test to scores on the 

previous test, and results from validity, 

reliability, and equating or standardsetting studies undertaken subsequent 

to the revisions. 

(Authority: 20 U.S.C. 9212) 

§ 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 contained 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 has two or 

more secure, parallel, equated forms of 

the test; 

(iv) Includes a test that samples one 

or more of the major content domains of 

the NRS educational functioning levels 

of ABE, ESL, or ASE 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 subtests measuring content domains other 

than those of the NRS educational 

functioning levels, the Secretary 


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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 

http://www.nrsweb.org a list of the 

names of tests 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, Division of 

Adult Education and Literacy, 400 

Maryland Avenue, SW., room 11159, 

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) Within 30 days after the Secretary 

notifies a test publisher that its test is 

not suitable for use in the NRS, the test 

publisher may request that the Secretary 

reconsider the Secretary’s decision. This 

request must be accompanied by—

(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 the information the 

publisher submitted as a basis for the 

Secretary’s review of the test was 

inaccurate. 

(2) 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 http://www.nrsweb.org a 

notice of that revocation along with the 

date by which States and local 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, Division of 

Adult Education and Literacy, 400 

Maryland Avenue, SW., room 11159, 

Potomac Center Plaza, Washington, DC 

20202–7240. 

(Authority: 20 U.S.C. 9212) 

§ 462.13 What criteria and requirements 

does the Secretary use for determining the 

suitability of tests? 

In order for the Secretary to consider 

a test suitable for use in the NRS, the 

test or the test publisher, if applicable, 

must meet the following criteria and 

requirements: 

(a) The test must measure the NRS 

educational functioning levels of 

members of the adult education 

population. 

(b) The test must sample one or more 

of the major content domains of the NRS 

educational functioning levels of ABE, 

ESL, or ASE with sufficient numbers of 

questions to adequately represent the 

domain or domains. 

(c)(1) The test must meet all 

applicable and feasible standards for 

test construction provided in the 1999 

edition of the Standards for Educational 

and Psychological Testing, prepared by 

the Joint Committee on Standards for 

Educational and Psychological Testing 

of the American Educational Research 

Association, the American 

Psychological Association, and the 

National Council on Measurement in 

Education incorporated by reference in 

this section. The Director of the Federal 

Register approves this incorporation by 

reference in accordance with 5 U.S.C. 

552(a) and 1 CFR part 51. You may 

obtain a copy from the American 

Psychological Association, Inc., 750 

First Street, NE., Washington, DC 20002. 

You may inspect a copy at the 

Department of Education, room 11108, 

550 12th Street, SW., Washington, DC 

20202 or at the National Archives and 

Records Administration (NARA). For 

information on the availability of this 

material at NARA, call (202) 741–6030, 

or go to: http://www.archives.gov/ 

federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html. 

(2) If asked by the Secretary, a test 

publisher must be able to explain why 

it believes that certain standards in the 

Standards for Educational and 

Psychological Testing were not 

applicable or were not feasible. 

(d) The test must contain the 

publisher’s guidelines for retesting, 

including time between test-taking, 

which are accompanied by appropriate 

justification. 

(e) The test must have two or more 

secure, parallel, equated forms. 

(f) For computerized adaptive tests, 

the size of the item pool and the method 

of item selection must be adequate to 

ensure negligible overlap in items across 

pre- and post-test administrations of the 

test to the same examinee. Scores 

associated with these alternate 

administrations must be equivalent in 

meaning. 

(g) For a test that has been modified 

for an individual with a disability, the 

test publisher must—

(1) Provide documentation that it 

followed the guidelines provided in the 

Testing Individuals With Disabilities 

section of the 1999 edition of the 

Standards for Educational and 

Psychological Testing; 

(2) Provide documentation of the 

appropriateness and feasibility of the 

modifications relevant to test 

performance; and 

(3) Recommend educational 

functioning levels based on the previous 

performance of test takers who are 

members of the adult education 

population of interest to the NRS. 

(Authority: 20 U.S.C. 9212) 

§ 462.14 How often and under what 

circumstances must a test be reviewed by 

the Secretary? 

(a) The Secretary’s determination that 

a test is suitable for use in the NRS is 

in effect for a period of seven years from 

the date of the Secretary’s written 

notification to the test publisher, unless 

otherwise indicated by the Secretary. 

After that time, if the test publisher 

wants the test to be used in the NRS, the 

test must be reviewed again by the 

Secretary so that the Secretary can 

determine whether the test continues to 

be suitable for use in the NRS. 

(b) If a test that the Secretary has 

determined is suitable for use in the 

NRS is substantially revised—for 

example, by changing its structure, 

number of items, content specifications, 

item types, or sub-tests—and the test 

publisher wants the test to continue to 

be used in the NRS, the test publisher 

must submit, as provided in 

§ 462.11(j)(4), the substantially revised 

test or version of the test to the 

Secretary for review so that the 

Secretary can determine whether the 

test continues to be suitable for use in 

the NRS. 


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(Authority: 20 U.S.C. 9212) 

Subpart C—[Reserved] 

Subpart D—What Requirements Must 

States and Local Eligible Providers 

Follow When Measuring Educational 

Gain? 

§ 462.40 Must a State have an assessment 

policy? 

(a) A State must have a written 

assessment policy that its local eligible 

providers must follow in measuring 

educational gain and reporting data in 

the NRS. 

(b) A State must submit its assessment 

policy to the Secretary for review and 

approval at the time it submits its 

annual statistical report for the NRS. 

(c) The State’s assessment policy 

must—

(1) Include a statement requiring that 

local eligible providers measure the 

educational gain of all students who 

receive 12 hours or more of instruction 

in the State’s adult education program 

with a test that the Secretary has 

determined is suitable for use in the 

NRS; 

(2) Identify the pre- and post-tests that 

the State requires local eligible 

providers to use to measure the 

educational gain of ABE, ESL, and ASE 

students; 

(3)(i) Indicate when, in calendar days 

or instructional hours, local eligible 

providers must administer pre- and 

post-tests to students; and 

(ii) Ensure that the time for 

administering the post-test is long 

enough after the pre-test to allow the 

test to measure educational gains 

according to the test publisher’s 

guidelines; 

(4) Specify the score ranges tied to 

educational functional levels for 

placement and for reporting gains for 

accountability; 

(5) Identify the skill areas the State 

intends to require local eligible 

providers to assess in order to measure 

educational gain; 

(6) Include the guidance the State 

provides to local eligible providers on 

testing and placement of an individual 

with a disability or an individual who 

is unable to be tested because of a 

disability; 

(7) Describe the training requirements 

that staff must meet in order to be 

qualified to administer and score each 

test selected by the State to measure the 

educational gains of students; 

(8) Identify the alternate form or forms 

of each test that local eligible providers 

must use for post-testing; 

(9) Indicate whether local eligible 

providers must use a locator test for 

guidance on identifying the appropriate 

pre-test; 

(10) Describe the State’s policy for the 

initial placement of a student at each 

NRS educational functioning level using 

test scores; 

(11) Describe the State’s policy for 

advancing students across educational 

functioning levels using the post-test 

and for measuring educational gain; 

(12) Describe the pre-service and inservice staff training that the State or 

local eligible providers will provide, 

including training—

(i) For staff who either administer or 

score each of the tests used to measure 

educational gain; 

(ii) For teachers and other local staff 

involved in gathering, analyzing, 

compiling, and reporting data for the 

NRS; and 

(iii) That includes the following 

topics: 

(A) NRS policy, accountability 

policies, and the data collection process. 

(B) Definitions of measures. 

(C) Conducting assessments; and 

(13) Identify the State or local agency 

responsible for providing pre- and inservice training. 

(Approved by the Office of Management and 

Budget under control number 1830–0027) 

(Authority: 20 U.S.C. 9212) 

§ 462.41 How must tests be administered 

in order to accurately measure educational 

gain? 

(a) General. A local eligible provider 

must measure the educational gains of 

students using only tests that the 

Secretary has determined are suitable 

for use in the NRS and that the State has 

identified in its assessment policy. 

(b) Pre-test. A local eligible provider 

must—

(1) Administer a pre-test to measure a 

student’s educational functioning level 

at intake, or as soon as possible 

thereafter; 

(2) Administer the pre-test to students 

at a uniform time, according to its 

State’s assessment policy; and 

(3) Administer pre-tests to students in 

the skill areas identified in its State’s 

assessment policy. 

(c) Post-test. A local eligible provider 

must—

(1) Administer a post-test to measure 

a student’s educational functioning 

level after a set time period or number 

of instructional hours; 

(2) Administer the post-test to 

students at a uniform time, according to 

its State’s assessment policy; 

(3) Administer post-tests with a 

secure, parallel, equated form of the 

same test that was used to pre-test and 

determine the initial placement of 

students; and 

(4) Administer post-tests to students 

in the same skill areas as the pre-test. 

(d) Other requirements. (1) A local 

eligible provider must administer a test 

using only staff who have been trained 

to administer the test. 

(2) A local eligible provider may use 

the results of a test in the NRS only if 

the test was administered in a manner 

that is consistent with the State’s 

assessment policy and the test 

publisher’s recommendations. 

(Approved by the Office of Management and 

Budget under control number 1830–0027) 

(Authority: 20 U.S.C. 9212) 

§ 462.42 How are tests used to place 

students at an NRS educational functioning 

level? 

(a) A local eligible provider must use 

the results of the pre-test described in 

§ 462.41(b) to initially place students at 

the appropriate NRS educational 

functioning level. 

(b) A local eligible provider must use 

the results of the post-test described in 

§ 462.41(c)—

(1) To determine whether students 

have completed one or more 

educational functioning levels or are 

progressing within the same level; and 

(2) To place students at the 

appropriate NRS educational 

functioning level. 

(c)(1) States and local eligible 

providers are not required to use all of 

the skill areas described in the NRS 

educational functioning levels to place 

students. 

(2) States and local eligible providers 

must test and report on the skill areas 

most relevant to the students’ needs and 

to the programs’ curriculum. 

(d)(1) If a State’s assessment policy 

requires a local eligible provider to test 

a student in multiple skill areas and the 

student will receive instruction in all of 

the skill areas, the local eligible 

provider must place the student in an 

educational functioning level that is 

equivalent to the student’s lowest test 

score for any of the skill areas tested 

under § 462.41(b) and (c). 

(2) If a State’s assessment policy 

requires a local eligible provider to test 

a student in multiple skill areas, but the 

student will receive instruction in fewer 

than all of the skill areas, the local 

eligible provider must place the student 

in an educational functioning level that 

is equivalent to the student’s lowest test 

score for any of the skill areas—

(i) Tested, under § 462.41(b) and (c); 

and 

(ii) In which the student will receive 

instruction. 

(Approved by the Office of Management and 

Budget under control number 1830–0027) 


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(Authority: 20 U.S.C. 9212) 

§ 462.43 How is educational gain 

measured? 

(a)(1) Educational gain is measured by 

comparing the student’s initial 

educational functioning level, as 

measured by the pre-test described in 

§ 462.41(b), with the student’s 

educational functioning level as 

measured by the post-test described in 

§ 462.41(c). 

Example: A State’s assessment policy 

requires its local eligible providers to test 

students in reading and numeracy. The 

student scores lower in reading than in 

numeracy. As described in § 462.42(d)(1), the 

local eligible provider would use the 

student’s reading score to place the student 

in an educational functioning level. To 

measure educational gain, the local eligible 

recipient would compare the reading score 

on the pre-test with the reading score on the 

post-test. 

(2) A student is considered to have 

made an educational gain when the 

student’s post-test indicates that he or 

she has completed one or more 

educational functioning levels above the 

level in which the student was placed 

by the pre-test. 

(b) If a student is not post-tested, then 

no educational gain can be measured for 

that student and the local eligible 

provider must report the student in the 

same educational functioning level as 

initially placed for NRS reporting 

purposes. 

(Approved by the Office of Management and 

Budget under control number 1830–0027) 

(Authority: 20 U.S.C. 9212) 

§ 462.44 Which educational functioning 

levels must States and local eligible 

providers use to measure and report 

educational gain in the NRS? 

States and local eligible providers 

must use the NRS educational 

functioning levels in the following 

functioning level table: 

BILLING CODE 4000–01–P 


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61590 Federal Register / Vol. 71, No. 201 / Wednesday, October 18, 2006 / Proposed Rules 


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Federal Register / Vol. 71, No. 201 / Wednesday, October 18, 2006 / Proposed Rules 61591 


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61592 Federal Register / Vol. 71, No. 201 / Wednesday, October 18, 2006 / Proposed Rules 


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Federal Register / Vol. 71, No. 201 / Wednesday, October 18, 2006 / Proposed Rules 61593 

(Approved by the Office of Management and 

Budget under control number 1830–0027) 

(Authority: 20 U.S.C. 9212) 

[FR Doc. 06–8709 Filed 10–17–06; 8:45 am] 

BILLING CODE 4000–01–C 


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