[Federal Register Volume 71, Number 177 (Wednesday, September 13, 2006)]
[Rules and Regulations]
[Pages 54188-54194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-7646]



[[Page 54187]]

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Part VI





 Department of Education





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34 CFR Part 200



 Title I--Improving the Academic Achievement of the Disadvantaged; 
Final Rule

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

[[Page 54188]]


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DEPARTMENT OF EDUCATION

34 CFR Part 200

RIN 1810-AA97


Title I--Improving the Academic Achievement of the Disadvantaged

AGENCY: Office of Elementary and Secondary Education, Department of 
Education.

ACTION: Final regulations.

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SUMMARY: The Secretary amends the regulations governing the programs 
administered under Title I, Part A, of the Elementary and Secondary 
Education Act of 1965, as amended (ESEA). These regulations are needed 
to implement statutory provisions regarding State, local educational 
agency (LEA), and school accountability for the academic achievement of 
limited English proficient (LEP) students and are needed to implement 
changes to Title I of the ESEA made by the No Child Left Behind Act of 
2001 (NCLB Act).

DATES: These regulations are effective October 13, 2006. Affected 
parties do not have to comply with the information collection 
requirements in Sec.  200.6(b)(4)(i)(C) until the Department publishes 
in the Federal Register the control number assigned by the Office of 
Management and Budget (OMB) to these information collection 
requirements. Publication of the control number notifies the public 
that OMB has approved these information collection requirements under 
the Paperwork Reduction Act of 1995.

FOR FURTHER INFORMATION CONTACT: Jacquelyn C. Jackson, Ed.D., Director, 
Student Achievement and School Accountability Programs, Office of 
Elementary and Secondary Education, U.S. Department of Education, 400 
Maryland Avenue, SW., Room 3W202, FB-6, Washington, DC 20202-6132. 
Telephone: (202) 260-0826.
    If you use a telecommunications device for the deaf (TDD), you may 
call the Federal Relay Service (FRS) at 1-800-877-8339.
    Individuals with disabilities may obtain this document in an 
alternative format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION: These regulations implement statutory 
provisions of Title I, Part A of the ESEA, as amended by the NCLB Act 
(Pub. L. 107-110), enacted January 8, 2002. On June 24, 2004, the 
Secretary published a notice of proposed rulemaking (NPRM) in the 
Federal Register (69 FR 35462).
    Under Title I of the ESEA, LEP students must be included in a 
State's assessment of academic achievement in reading/language arts and 
mathematics, and must receive appropriate accommodations and, to the 
extent practicable, native language assessments. LEP students must also 
be assessed annually for their proficiency in English in the modalities 
of listening, speaking, reading, and writing.
    In the preamble to the NPRM, the Secretary discussed on pages 35463 
and 35464 the major changes proposed to the current Title I 
regulations. These changes are summarized as follows:
    <bullet> Under proposed Sec.  200.6(b)(4), a State would be able to 
exempt ``recently arrived LEP students'' from one administration of the 
State's reading/language arts assessment. Proposed Sec.  200.6(b)(4)(i) 
would define a recently arrived LEP student as a LEP student who has 
attended schools in the United States (not including Puerto Rico) for 
less than 10 months.
    <bullet> Under proposed Sec.  200.20(f)(1)(ii), a State would not 
be required to include the scores of recently arrived LEP students on 
the reading/language arts assessment (if taken) in decisions regarding 
adequate yearly progress (AYP), even if the student has been enrolled 
for a full academic year as defined by the State. However, these 
students could be counted as participants toward meeting the 95 percent 
participation requirement for AYP determinations in reading/language 
arts if they take an English language proficiency test. Under proposed 
Sec.  200.20(f)(1)(ii), the State also would not be required to include 
the scores of recently arrived LEP students on the mathematics 
assessment in AYP decisions.
    <bullet> Under proposed Sec.  200.20(f)(2), a State would be 
permitted to include ``former LEP'' students within the LEP subgroup in 
making AYP determinations for up to two years after they no longer meet 
the State's definition for limited English proficiency.
    <bullet> Proposed Sec.  200.20(f)(2)(iii) would not allow States to 
include former LEP students when reporting achievement results on State 
and LEA report cards, as required under section 1111(h)(1)(C) and (2) 
of the ESEA.
    In these final regulations, we are making several significant 
changes from the regulations proposed in the NPRM. These changes are as 
follows:
    <bullet> Definition of recently arrived LEP students. The Secretary 
has made several changes in the definition of recently arrived LEP 
students. First, Sec.  200.6(b)(4)(iv) defines a recently arrived LEP 
student as a student with limited proficiency in English who has 
attended schools in the United States for less than twelve months, 
rather than ten months as provided in the NPRM. The Secretary made this 
change to accommodate year-round schools. The Secretary notes that this 
definition focuses on length of time in United States schools, not 
length of time in the United States. The Secretary also notes that 
States may only exempt recently arrived LEP students from one 
administration of the State's reading/language arts assessment.
    Second, the Secretary has clarified, in Sec.  200.6(b)(4)(iv) that 
the phrase ``schools in the United States'' means only schools in the 
50 States and the District of Columbia. It does not include schools in 
Puerto Rico, the outlying areas, or the freely associated states.
    <bullet> Instruction for recently arrived LEP students. The 
Secretary has added Sec.  200.6(b)(4)(i)(D) to emphasize that, 
notwithstanding the flexibility the regulations afford regarding 
assessment and accountability with respect to recently arrived LEP 
students, an LEA has the responsibility to provide appropriate 
instruction to these students to assist them in gaining English-
language proficiency as well as content knowledge in reading/language 
arts and mathematics.
    <bullet> Reporting data on exemptions for recently arrived LEP 
students. The Secretary has added Sec.  200.6(b)(4)(i)(C) to require a 
State and its LEAs, on State and district report cards, respectively, 
to report annually the number of recently arrived LEP students exempted 
from one administration of the State's reading/language arts 
assessment.
    <bullet> Reporting data on former LEP students. In Sec.  
200.20(f)(2)(iii), the Secretary has clarified how to report data 
relating to former LEP students on a State's or LEA's report card. This 
section clarifies that a State or LEA may include the scores of former 
LEP students as part of the LEP subgroup only for the purpose of 
reporting AYP. States and LEAs may not include former LEP students in 
the LEP subgroup on State or LEA report cards for any other purpose. 
The Secretary also has clarified that, if a State or LEA chooses to 
include the scores of former LEP students as part of the LEP subgroup 
for calculating and reporting AYP, the State or LEA must include the 
scores of all students defined as former LEP students in AYP 
calculations and reporting.

[[Page 54189]]

Analysis of Comments and Changes

    In response to the Secretary's invitation in the NPRM, 
approximately 50 parties submitted comments on the proposed 
regulations. An analysis of the comments and of the changes in the 
regulations since publication of the NPRM follows.
    We discuss substantive issues under the sections of the regulations 
to which they pertain. Generally, we do not address technical or minor 
changes, and suggested changes that we are not authorized to make under 
the law.

Section 200.6 Inclusion of all students

    Comment: Many commenters recommended changing the definition of a 
``recently arrived'' LEP student to mean a LEP student who has attended 
schools in the United States for a period of time ranging from 12 
months to five years or to tie the definition to a student's English 
language proficiency. Several others commented that a requirement based 
on the length of time a student has attended schools in the United 
States may be difficult to implement. One commenter recommended 
defining a ``recently arrived'' LEP student by the length of time the 
student has attended schools in a particular State.
    Discussion: The purpose of these regulations is to allow a one-time 
exemption from content assessments in reading/language arts for those 
students who have had little instructional time in United States 
schools and are not proficient in English. The definition of recently 
arrived LEP students in the proposed regulations had two components: 
(1) A time limit, and (2) a limit on the number of times a student may 
be exempted from taking the reading/language arts assessment. We 
believed it was important to have a time limit to ensure that the one-
time exemption is used only for LEP students who have recently arrived 
in schools in the United States, not for those students who have lived 
in the United States for a number of years and attended United States 
schools but who still possess limited proficiency in English.
    The proposed regulations provided that recently arrived LEP 
students would be those who have attended schools in the United States 
for less than ten months before the State's reading/language arts test 
is administered. The purpose of the ten-month time limit was to provide 
a limit that was the equivalent of one year's worth of instruction. 
However, a ten-month time limit may not equate to a full year of 
instruction in certain circumstances, such as in a year-round school 
that operates over 12 months. The Secretary thus agrees that ten months 
may be confusing to implement in certain circumstances, and that 
changing the limit to 12 months maintains a limit of one year while 
affording flexibility and reducing any potential confusion. Even with 
this change, recently arrived LEP students are exempt from only one 
administration of the State's reading/language arts assessment.
    While the Secretary recognizes that ascertaining the number of 
months of attendance in U.S. schools for recently arrived LEP students 
may be challenging for some States, in order to implement the 
flexibility related to recently arrived LEP students, a State must be 
able to identify such students. The Department intends to prepare 
guidance to assist States in making these determinations.
    The definition of a recently arrived LEP student is not intended to 
include students who have lived in the United States for much of their 
lives and/or have attended United States schools for more than 12 
months but have not learned sufficient English to demonstrate even 
limited proficiency.
    Changes: Section 200.6(b)(4)(iv) has been amended to permit States 
to consider LEP students as being recently arrived if they have 
attended schools in the United States for less than 12 months.
    Comment: Several commenters recommended that recently arrived LEP 
students also be exempt from the first administration of the State's 
mathematics assessment, as well as the science assessment required by 
2007-2008.
    Discussion: The final regulations require that recently arrived LEP 
students take the mathematics assessment. The Secretary believes that 
English language proficiency is not a prerequisite to participating in 
State mathematics assessments to the same extent as it is to 
participating in State reading/language arts assessments. Research 
provides evidence on accommodations that can be used with LEP students 
in mathematics and have been shown not to compromise the validity of 
the test and skills being measured when appropriately implemented.\1\ 
With accommodations, recently arrived LEP students should be able to 
demonstrate sufficient knowledge of mathematics to provide useful 
information to teachers in order to inform instruction and to parents 
to let them know how their child is achieving. The regulations 
recognize that valuable information can be obtained to inform 
instruction when recently arrived LEP students take the mathematics 
assessment, but provide flexibility to States to exclude these scores 
from AYP calculations for one year.
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    \1\ See, for example, Abedi and Leon, 1999; Abedi, Leon and 
Mirocha, 2001; Abedi et al., 2000, for research on test 
accommodations and findings related to accommodations used on 
mathematics assessments with LEP students that allow students to 
demonstrate knowledge of content without unfair advantage or without 
compromising test validity.
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    While taking these assessments, recently arrived LEP students 
should receive the same accommodations as provided during classroom 
instruction. Science assessments are not required to be in place until 
the 2007-2008 school year and even then are not required to be included 
in AYP determinations.
    Changes: None.
    Comment: Two commenters expressed concern that the language in 
proposed Sec.  200.6(b)(4)(i) could be misconstrued to mean that 
students who attended schools in Puerto Rico, a Commonwealth of the 
United States, may not be included in the population of recently 
arrived LEP students.
    Discussion: In proposed Sec.  200.6(b)(4)(i), the Secretary 
intended that students who come to the United States from Puerto Rico, 
where Spanish is the language of instruction, would not be considered 
to have been enrolled in United States schools while in Puerto Rico. 
Thus, LEP students from Puerto Rico would be included in the definition 
of recently arrived LEP students for purposes of these regulations.
    Changes: Section 200.6(b)(4)(iv) has been changed to state 
explicitly that only schools in the 50 States and the District of 
Columbia are considered to be schools in the United States for purposes 
of these regulations. As a result, LEP students from Puerto Rico, the 
outlying areas, and the freely associated States are included in the 
definition of recently arrived LEP students.
    Comment: Two commenters expressed concern that the regulations 
provide no incentive for LEAs to serve recently arrived LEP students 
and urged the Secretary to encourage LEAs to provide recently arrived 
LEP students with intensified instruction in both English language 
development and academic content so that the students will be better 
prepared to take the State's assessments the following year.
    Discussion: The Secretary agrees that these regulations are not an 
invitation for LEAs to ignore either content or English language 
instruction for recently arrived LEP students merely because the 
students' scores may not be included in

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accountability decisions. To the contrary, the purpose of the 
regulations is to afford LEAs time to provide instruction in English as 
well as content to recently arrived LEP students to prepare them to 
take the State's assessment in reading/language arts the following 
year.
    Changes: Section 200.6(b)(4)(i)(D) has been added to explicitly 
state that nothing in these regulations relieves an LEA of its 
responsibility under applicable law to provide recently arrived LEP 
students with appropriate instruction to enhance their English language 
proficiency and their knowledge of content in reading/language arts 
during the period in which they may be exempt from the State's reading/
language arts assessment.
    Comment: Several commenters urged the Secretary to assist in 
research, development, validation, and dissemination of native language 
assessments.
    Discussion: The Secretary recognizes the value of native language 
assessments in measuring the proficiency of limited English proficient 
students in reading, mathematics, science, and other core academic 
subjects that are anchored to rigorous State content standards. States 
may use funds under section 6111 of the ESEA, Grants for State 
Assessments and Related Activities, section 6112 of the ESEA, Grants 
for Enhanced Assessment Instruments, and consolidated State 
administrative funds to address this need and can join various 
consortia funded by the Department that are developing better 
strategies and instruments to include LEP students in State standards-
based assessment systems. In addition, the Department has recently 
initiated a partnership with States to offer long-term support and 
technical assistance in order to help States improve content assessment 
options for LEP students, including native language assessments, 
assessments using plain language or simplified English, effective use 
of accommodations with LEP students and other approaches.
    Changes: None.
    Comment: Two commenters requested that the final regulations define 
Spanish native language assessments as always ``practicable'' and 
clarify the States' responsibilities to develop and administer native 
language assessments.
    Discussion: Section 200.6(b) of the current Title I regulations 
requires that States assess limited English proficient students in a 
valid and reliable manner that includes reasonable accommodations and, 
to the extent practicable, assessments in the language and form most 
likely to yield accurate and reliable information on what those 
students know and can do to determine the students' mastery of skills 
in subjects other than English. Although Spanish is the most common of 
the hundreds of different languages spoken by LEP students, Spanish 
native language assessments are not always practicable, nor do they 
always result in accurate and reliable information on what students 
know and can do. For example, a native language assessment may not 
yield valid and reliable results for students who are not literate in 
their native language, who speak a dialect that is different from the 
one in which the native language assessment is written, or who receive 
the majority of their instruction in English and thus have not been 
exposed to the academic vocabulary of their native language.
    Changes: None.
    Comment: None.
    Discussion: Dissemination, through report cards, of clear and 
understandable data on student participation in and performance on 
State assessments is central to the NCLB Act and is the best management 
tool we have for improving schools. Upon the Department's own internal 
review of these regulations, the Secretary has determined that these 
regulations should help ensure that parents and the public are informed 
annually about the number of recently arrived LEP students exempted 
from State reading/language arts assessments.
    Change: We have added new Sec.  200.6(b)(4)(i)(C) to require States 
and LEAS to report on their report cards the number of recently arrived 
LEP students who are not assessed on the State's reading/language arts 
assessment.

Section 200.20 Making Adequate Yearly Progress

    Comment: Several commenters recommended that the regulations permit 
States to include formerly LEP students in reporting the achievement of 
the LEP subgroup on State and LEA report cards required under section 
1111(h) of the ESEA.
    Discussion: The Secretary recognizes that the LEP subgroup is one 
whose membership can change from year to year as students who have 
attained English proficiency exit the subgroup and new students not 
proficient in English enter the subgroup. Because LEP students exit the 
LEP subgroup once they attain English language proficiency, school 
assessment results for that subgroup may not reflect the gains that LEP 
students have made in academic achievement. Recognizing this, the final 
regulations allow a State to include ``former LEP'' students within the 
LEP subgroup in making AYP determinations for up to two years after 
they no longer meet the State's definition for limited English 
proficiency. At the same time, however, it is important that parents 
and the public have a clear picture of the academic achievement of 
those students who are presently limited English proficient. Thus, the 
final regulations distinguish between including former LEP students in 
the LEP subgroup for assessment data reporting and including them in 
that subgroup when reporting AYP on State and LEA report cards.
    Under the ESEA, in section 1111(h)(1)(C), and section 1111(h)(2)(B) 
as that section applies to an LEA and each school served by the LEA, 
information on subgroups is reported in two distinct ways. Under 
section 1111(h)(1)(C)(i, iii, iv, v, and vi) and section 1111(h)(2)(B) 
as that section applies to an LEA and each school served by the LEA, 
information is reported for all students and the students in each 
subgroup (race/ethnicity, gender, disability status, migrant status, 
English proficiency, and status as economically disadvantaged), 
regardless of whether a student's achievement is used in determining if 
the subgroup has made AYP (i.e., reporting includes students who have 
not been enrolled for a full academic year, as defined by the State, 
and students in subgroups too small to meet the State's minimum group 
size for determining AYP). For reporting under the above-referenced 
provisions, former LEP students may not be included in the LEP subgroup 
because it is important that parents and the public have a clear 
picture of the academic achievement of students who are currently 
limited English proficient. On the other hand, section 
1111(h)(1)(C)(ii) and section 1111(h)(2)(B), as that section applies to 
an LEA and each school served by the LEA, provide for a comparison 
between the achievement levels of subgroups and the State's annual 
measurable objectives for AYP in reading/language arts and mathematics 
(for all students, and disaggregated by race/ethnicity, disability 
status, English proficiency, and status as economically disadvantaged). 
For this section of State and LEA report cards, States and LEAs are 
reporting on how students whose assessment scores were used in 
determining AYP (i.e., students enrolled for a full academic year) for 
reading/language arts and mathematics compare to the State's annual 
measurable objective for AYP. For reporting AYP by

[[Page 54191]]

subgroup, former LEP students may be included in the LEP subgroup.
    Changes: Section 200.20(f)(2)(iii) has been changed to clarify the 
distinction between reporting assessment data and reporting 
accountability data on State and LEA report cards and to clarify that 
``former LEP'' students may be included within the LEP subgroup only 
under section 1111(h)(1)(C)(ii) of the ESEA, and section 1111(h)(2)(B) 
of the ESEA as that section applies to comparable data reported on LEA 
report cards.
    Comment: One commenter contended that Sec.  200.20 should allow the 
State to include, in the LEP subgroup, those students who were LEP but 
who no longer meet the State's definition for up to three years instead 
of the two years proposed in the NPRM.
    Discussion: Section 3121(a)(4) of Title III of the ESEA requires 
LEAs that receive Title III funds to monitor the progress of students 
served by Title III in meeting challenging State academic content and 
academic achievement standards for each of the two years after such 
students are no longer receiving Title III services. Because of this 
Title III requirement, States have already begun designing data 
collection systems to track students in this manner. The Secretary 
believes the final regulations should be consistent with the Title III 
provisions.
    Changes: None.
    Comment: One commenter recommended that States be required to 
include former LEP students in the LEP subgroup in determining whether 
a school or LEA has a sufficient number of LEP students to yield 
statistically reliable information under Sec.  200.7(a).
    Discussion: The regulations are designed to assist schools and LEAs 
that have a LEP subgroup of sufficient size (without including former 
LEP students) to yield statistically reliable information, as 
determined by the State, to demonstrate their progress with that 
subgroup by enabling those schools and LEAs to include the scores of 
former LEP students in AYP calculations for up to two years after the 
student exits the LEP subgroup. States that wish to include former LEP 
students in the LEP subgroup in determining whether a school or LEA has 
a sufficient number of LEP students to yield statistically reliable 
information under Sec.  200.7(a) may do so.
    Changes: None.
    Comment: One commenter recommended that the Secretary clarify that, 
if States include former LEP students in AYP calculations for LEP 
subgroups, this action must be taken on a statewide basis.
    Discussion: The Secretary expects each State to have a policy 
governing the inclusion of former LEP students in AYP calculations. A 
State may certainly establish and apply statewide a uniform policy 
requiring all LEAs to include the scores of former LEP students in 
their AYP calculations. However, the Secretary believes that a State 
should have the discretion to give LEAs the option, based on their 
individual circumstances, of deciding whether to include the scores of 
former LEP students in the LEP subgroup for AYP calculations. For 
example, an LEA with a small LEP population might decide it is not 
practical to disaggregate the scores of former LEP students for AYP 
purposes.
    Changes: None.
    Comment: One commenter recommended that the Secretary prohibit 
States from including recently arrived LEP students in the State's 
assessment participation rate if the State does not count the scores of 
these students in determining AYP.
    Discussion: The Secretary believes that recently arrived LEP 
students should be counted as participants because they are taking the 
State's mathematics assessment and English language proficiency 
assessment, and they may be taking the State's reading/language arts 
assessment as well. A school or LEA should not be penalized in its 
participation rate if the scores of recently arrived LEP students are 
not included for determining AYP.
    Changes: None.
    Comment: A few commenters requested that the Secretary extend the 
flexibility in proposed Sec.  200.20(f)(2) to students who were 
formerly classified as having a disability. The commenters specifically 
urged that the regulations be amended to allow the scores of students 
with disabilities who are no longer eligible for special education to 
be included, for up to two years, in the same manner that they allow 
for including the scores of former LEP students. The commenters believe 
that the circumstances prompting the proposed regulations for former 
LEP students are similar with respect to students with disabilities.
    Discussion: On December 15, 2005, the Secretary published in the 
Federal Register a notice of proposed rulemaking (70 FR 74624) that 
would permit a State, in determining AYP for the students with 
disabilities subgroup, to include in that subgroup any student tested 
in the current year who had exited special education within the prior 
two-year period. The Secretary is currently considering the public 
comments she has received on this issue and will address it in response 
to the December 15 proposed rules.
    Changes: None.
    Comment: One commenter pointed out that a State could not take 
advantage of the flexibility provided in the regulations if its current 
data system does not include the number of years a student has been 
``formerly LEP.'' The commenter recommended that the regulations permit 
States to include all formerly LEP students in the LEP subgroup through 
2005-2006, providing time for the data system to collect new data on 
the number of years a student has been ``formerly LEP.''
    Discussion: Permitting States to include all former LEP students in 
the LEP subgroup through the 2005-2006 school year could significantly 
mask the achievement of the LEP subgroup by overweighting it with 
former LEP students (including those who have not been LEP for several 
years) and, thus, creating the potential for ill-advised decisions 
regarding appropriate instructional strategies for this group of 
students. A State that improves its data collection procedures to track 
former LEP students may take advantage of the flexibility as the data 
become available. Thus, in the first year, the State may include in the 
AYP calculations for the LEP subgroup the scores for former LEP 
students who have been determined to no longer be LEP for one year and, 
in the second year, include the scores of all former LEP students who 
have been determined to no longer be LEP for one and two years.
    Changes: None.
    Comment: None.
    Discussion: Upon the Department's own internal review of these 
regulations, the Secretary believes it is important to clarify how 
States and LEAs may implement the flexibility related to including the 
scores of former LEP students in calculating and reporting AYP for the 
LEP subgroup. If a State or LEA decides to include the scores of former 
LEP students in determining AYP, that State or LEA must include the 
entire group of former LEP students in such AYP calculations. The 
regulations are not intended to permit States and LEAs to pick and 
choose which former LEP students to include, or to choose a subset of 
former LEP students, such as only former LEP students who score 
proficient or higher on State assessments. In other words, if a State 
or LEA chooses to take advantage of this flexibility and include the 
scores of former LEP students in calculating and reporting AYP, the 
State or LEA must include all such defined students.
    Changes: We have modified Sec.  200.20(f)(2)(ii) to clarify that, 
if a State

[[Page 54192]]

or LEA chooses to include the scores of former LEP students as part of 
the LEP subgroup for purposes of calculating and reporting AYP, it must 
include the scores of all students it defines as former LEP students.

General Comments

    Comment: One commenter noted that States without a student-based 
data management system would have to develop such a system in order to 
obtain the data necessary to implement these regulations. The commenter 
further indicated that, because there are costs associated with the 
development of a student-based data management system, there are costs 
associated with implementing these regulations.
    Discussion: The flexibility afforded by the final regulations is 
purely permissive. No State is required to exercise it and, thus, none 
is required to incur any additional costs as a result of these 
regulations.
    Changes: None.
    Comment: One commenter requested that the Secretary apply these 
regulations retroactively to AYP determinations from the 2002-03 school 
year. The commenter argued that schools should not be penalized for 
failing to make AYP if they would have made it under the new rules.
    Discussion: The Secretary first announced the flexibility included 
in these regulations in a letter dated February 20, 2004, and in that 
letter permitted States to implement the flexibility provided in these 
regulations for AYP decisions based on 2003-2004 assessment data. 
Because identification for improvement depends on a school not making 
AYP for two consecutive years, a school or district would not be 
identified for improvement solely on the basis of the performance of 
its LEP subgroup, absent this flexibility, on the State's 2002-2003 
assessments. Further, if a school or district did not make AYP for the 
LEP subgroup based on the 2003-2004 assessment with this new 
flexibility, the determination that the school or district did not make 
AYP based also on the 2002-2003 assessment was most likely appropriate.
    Changes: None.
    Comment: One commenter requested that the final regulations allow 
States to count former LEP students for the purposes of determining the 
amount of Title III funding a State will receive.
    Discussion: The primary purposes of Title III of the ESEA are to 
ensure that students who are LEP, as measured against State English 
language proficiency standards, attain English language proficiency and 
develop high levels of academic attainment; to develop high-quality 
instructional programs for LEP students; and to assist States, LEAs, 
and schools to build and enhance their capacity to establish, 
implement, and sustain language instruction programs for LEP students. 
Former LEP students are, by definition, students who, as measured 
against State English language proficiency standards and assessments, 
have attained English language proficiency. Counting students who are 
no longer LEP for the purposes of determining Title III funding would 
be contrary to the targeted purposes of the Title III program. 
Furthermore, Title III of the ESEA includes explicit statutory 
instructions for how funding allocations to States are to be made.
    Changes: None.

Executive Order 12866

    We have reviewed these final regulations in accordance with 
Executive Order 12866. Under the terms of the order, we have assessed 
the potential costs and benefits of this regulatory action.
    The potential costs associated with the final regulations are those 
we have determined to be necessary for administering the requirements 
of the statute effectively and efficiently.
    In assessing the potential costs and benefits of the final 
regulations, we have determined that the benefits of the regulations 
justify the costs.
    We have also determined that this regulatory action does not unduly 
interfere with State, local, and tribal governments in the exercise of 
their governmental functions.
    We summarized the potential costs and benefits of these final 
regulations in the preamble to the NPRM (69 FR 35464). We include 
additional discussion of potential costs and benefits in the section of 
this preamble titled Analysis of Comments and Changes.

Regulatory Flexibility Act

    The Secretary certifies that these regulations will not have a 
significant economic impact on a substantial number of small entities.
    These provisions require States and LEAs to take certain actions 
only if States choose to implement the flexibility these regulations 
afford. The Department believes that these activities will be financed 
through the appropriations for Title I and other Federal programs and 
that the responsibilities encompassed in the law and regulations will 
not impose a financial burden that States and LEAs will have to meet 
from non-Federal resources.

Paperwork Reduction Act of 1995

    The amendments to Sec.  200.6 contain information collection 
requirements. Under the Paperwork Reduction Act of 1995, the Department 
has submitted a copy of this section to the Office of Management and 
Budget (OMB) for its review. The burden hours associated with this data 
collection are estimated at 52 hours total, based on each State taking 
one hour to report these data in the appropriate form. The Department 
is requesting approval of these burden hours as a ``new'' information 
collection. However, the Department intends to eventually transfer 
these hours to the information collection covered under OMB Control 
Number 1810-0581.
    This information collection relates to a change in the reporting 
requirements already required under Title I, Part A of the ESEA for 
States that voluntarily choose to take advantage of the flexibility 
afforded by this regulation. States and districts already collect the 
number of students exempted from State assessments, and report, on 
State and local report cards, the percentage of students not tested 
(Section 1111(h)(1)(C)(iii)), disaggregated by student category. The 
regulations would add a reporting category, to be reported on State and 
local report cards, for the number of students who were not tested 
because they were identified as LEP students who are recent arrivals to 
the United States.
    Each of the 50 States, Puerto Rico, and the District of Columbia 
that wishes to take advantage of the flexibility related to recently 
arrived LEP students would need to report these data on SEA and LEA 
report cards.
    There is no appreciable burden associated with the collection as 
SEAs and LEAs already report on student exemptions from State 
assessments on report cards. The cost for this collection is also 
minimal as it is a matter of adding to or recoding SEA and LEA test 
exemption collection instruments to include this newly available 
exemption option and adding that information to report cards.
    In order to take advantage of the flexibility related to recently 
arrived LEP students, SEAs and LEAs would have to be able to, and would 
want to, account for and track separately the students to which this 
exemption would apply in order that those students are not miscounted 
as non-participants in the State's reading/language arts assessment for 
meeting the 95 percent participation requirement. We estimate annual 
reporting and recordkeeping burden for this collection of information

[[Page 54193]]

to average 1 hour for each of the 52 respondents.
    If you want to comment on the information collection requirements, 
please send your comments to the Office of Information and Regulatory 
Affairs, OMB, Room 10235, New Executive Office Building, Washington, DC 
20503. You may also send a copy of these comments to the Department's 
representative named in the FOR FURTHER INFORMATION CONTACT section of 
this document.
    We consider your comments on this proposed information collection 
in:
    <bullet> Deciding whether the proposed collection is necessary for 
the proper performance of our functions, including whether the 
information will have practical use;
    <bullet> Evaluating the accuracy of our estimate of the burden of 
this proposed collection, including the validity of our methodology and 
assumptions;
    <bullet> Enhancing the quality, usefulness, and clarity of the 
information we collect; and
    <bullet> Minimizing the burden on those who must respond. This 
includes the use of appropriate automated, electronic, mechanical or 
other technological collection techniques or other forms of information 
technology, e.g. permitting electronic submissions of response.
    OMB is required to make a decision concerning the collection of 
information contained in this regulation between 30 and 60 days after 
the publication of this document in the Federal Register. Therefore, to 
ensure that OMB gives your comments full consideration, it is important 
that OMB receives the comments within 30 days of publication.

Electronic Access to This Document

    You may view this document, as well as all other Department of 
Education documents published in the Federal Register, in text or Adobe 
Portable Document Format (PDF) on the Internet at the following site: 
http://www.ed.gov/news/fedregister.
    To use PDF you must have Adobe Acrobat Reader, which is available 
free at this site. If you have questions about using PDF, call the U.S. 
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in 
the Washington, DC, area at (202) 512-1530.


    Note: The official version of this document is the document 
published in the Federal Register. Free Internet access to the 
official edition of the Federal Register and the Code of Federal 
Regulations is available on GPO Access at: http://www.gpoaccess.gov/nara/index.html.


(Catalog of Federal Domestic Assistance Number: 84.010 Improving 
Programs Operated by Local Educational Agencies)

List of Subjects

34 CFR Part 200

    Administrative practice and procedure, Adult education, Children, 
Education of children with disabilities, Education of disadvantaged 
children, Elementary and secondary education, Eligibility, Family-
centered education, Grant programs--education, Indians--education, 
Institutions of higher education, Juvenile Delinquency, Local 
educational agencies, Migrant labor, Nonprofit private agencies, 
Private schools, Public agencies, Reporting and recordkeeping 
requirements, State-administered programs, State educational agencies.

    Dated: September 11, 2006.
Margaret Spellings,
Secretary of Education.

0
For the reasons discussed in the preamble, the Secretary amends part 
200 of title 34 of the Code of Federal Regulations as follows:

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

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

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


0
2. Amend Sec.  200.6 as follows:
0
A. Revise the introductory text of the section;
0
B. Revise paragraph (b)(1)(i) introductory text; and
0
C. Add a new paragraph (b)(4).
    The revisions and addition read as follows:


Sec.  200.6  Inclusion of all students.

    A State's academic assessment system required under Sec.  200.2 
must provide for the participation of all students in the grades 
assessed in accordance with this section.
* * * * *
    (b) * * *
    (1) * * *
    (i) Consistent with paragraphs (b)(2) and (b)(4) of this section, 
the State must assess limited English proficient students in a valid 
and reliable manner that includes--
* * * * *
    (4) Recently arrived limited English proficient students. (i)(A) A 
State may exempt a recently arrived limited English proficient student, 
as defined in paragraph (b)(4)(iv) of this section, from one 
administration of the State's reading/language arts assessment under 
Sec.  200.2.
    (B) If the State does not assess a recently arrived limited English 
proficient student on the State's reading/language arts assessment, the 
State must count the year in which the assessment would have been 
administered as the first of the three years in which the student may 
take the State's reading/language arts assessment in a native language 
under section 1111(b)(3)(C)(x) of the Act.
    (C) The State and its LEAs must report on State and district report 
cards under section 1111(h) of the Act the number of recently arrived 
limited English proficient students who are not assessed on the State's 
reading/language arts assessment.
    (D) Nothing in paragraph (b)(4) of this section relieves an LEA 
from its responsibility under applicable law to provide recently 
arrived limited English proficient students with appropriate 
instruction to assist them in gaining English language proficiency as 
well as content knowledge in reading/language arts and mathematics.
    (ii) A State must assess the English language proficiency of a 
recently arrived limited English proficient student pursuant to 
paragraph (b)(3) of this section.
    (iii) A State must assess the mathematics achievement of a recently 
arrived limited English proficient student pursuant to Sec.  200.2.
    (iv) A recently arrived limited English proficient student is a 
student with limited English proficiency who has attended schools in 
the United States for less than twelve months. The phrase ``schools in 
the United States'' includes only schools in the 50 States and the 
District of Columbia.
* * * * *

0
3. Amend Sec.  200.20 as follows:
0
A. Revise paragraphs (a)(1) introductory text, (b) introductory text, 
and (c)(1) introductory text; and
0
B. Add a new paragraph (f).
    The revisions and addition read as follows:


Sec.  200.20  Making adequate yearly progress.

* * * * *
    (a)(1) A school or LEA makes AYP if, consistent with paragraph (f) 
of this section--
* * * * *
    (b) If students in any group under Sec.  200.13(b)(7) in a school 
or LEA do not meet the State's annual measurable objectives under Sec.  
200.18, the school or LEA makes AYP if, consistent with paragraph (f) 
of this section--
* * * * *

[[Page 54194]]

    (c)(1) A school or LEA makes AYP if, consistent with paragraph (f) 
of this section--
* * * * *
    (f)(1) In determining AYP for a school or LEA, a State may--
    (i) Count recently arrived limited English proficient students as 
having participated in the State assessments for purposes of meeting 
the 95 percent participation requirement under paragraph (c)(1)(i) of 
this section if they take--
    (A) Either an assessment of English language proficiency under 
Sec.  200.6(b)(3) or the State's reading/language arts assessment under 
Sec.  200.2; and
    (B) The State's mathematics assessment under Sec.  200.2; and
    (ii) Choose not to include the scores of recently arrived limited 
English proficient students on the mathematics assessment, the reading/
language arts assessment (if administered to these students), or both, 
even if these students have been enrolled in the same school or LEA for 
a full academic year as defined by the State.
    (2)(i) In determining AYP for the subgroup of limited English 
proficient students, a State may include, for a period of up to two 
years, the scores of students who were limited English proficient but 
who no longer meet the State's definition of limited English 
proficiency.
    (ii) If a State, in determining AYP for the subgroup of limited 
English proficient students, includes the scores of the students 
described in paragraph (f)(2)(i) of this section, the State must 
include the scores of all such students, but is not required to--
    (A) Include those students in the limited English proficient 
subgroup in determining if the number of limited English proficient 
students is sufficient to yield statistically reliable information 
under Sec.  200.7(a);
    (B) Assess those students' English language proficiency under Sec.  
200.6(b)(3); or
    (C) Provide English language services to those students.
    (iii) For the purpose of reporting information on report cards 
under section 1111(h) of the Act--
    (A) A State may include the scores of former limited English 
proficient students as part of the limited English proficient subgroup 
for the purpose of reporting AYP at the State level under section 
1111(h)(1)(C)(ii) of the Act;
    (B) An LEA may include the scores of former limited English 
proficient students as part of the limited English proficient subgroup 
for the purpose of reporting AYP at the LEA and school levels under 
section 1111(h)(2)(B) of the Act; but
    (C) A State or LEA may not include the scores of former limited 
English proficient students as part of the limited English proficient 
subgroup in reporting any other information under section 1111(h) of 
the Act.

[FR Doc. 06-7646 Filed 9-12-06; 8:45 am]
BILLING CODE 4000-01-P