Federal Register / Vol. 78, No. 164 / Friday, August 23, 2013 / Proposed Rules 52467 

the cracking, in accordance with the 

Accomplishment Instructions of Fokker 

Service Bulletin SBF100–53–121, dated May 

15, 2012. 

(i) Other FAA AD Provisions 

The following provisions also apply to this 

AD: 

(1) Alternative Methods of Compliance 

(AMOCs): The Manager, International 

Branch, ANM–116, Transport Airplane 

Directorate, FAA, has the authority to 

approve AMOCs for this AD, if requested 

using the procedures found in 14 CFR 39.19. 

In accordance with 14 CFR 39.19, send your 

request to your principal inspector or local 

Flight Standards District Office, as 

appropriate. If sending information directly 

to the International Branch, send it to ATTN: 

Tom Rodriguez, Aerospace Engineer, 

International Branch, ANM–116, Transport 

Airplane Directorate, FAA, 1601 Lind 

Avenue SW., Renton, Washington 98057– 

3356; telephone (425) 227–1137; fax (425) 

227–1149. Information may be emailed to: 9- 

ANM-116-AMOC-REQUESTS@faa.gov. 

Before using any approved AMOC, notify 

your appropriate principal inspector, or 

lacking a principal inspector, the manager of 

the local flight standards district office/

certificate holding district office. The AMOC 

approval letter must specifically reference 

this AD. 

(2) Airworthy Product: For any requirement 

in this AD to obtain corrective actions from 

a manufacturer or other source, use these 

actions if they are FAA-approved. Corrective 

actions are considered FAA-approved if they 

are approved by the State of Design Authority 

(or their delegated agent). You are required 

to assure the product is airworthy before it 

is returned to service. 

(j) Related Information 

(1) Refer to Mandatory Continuing 

Airworthiness Information (MCAI) European 

Aviation Safety Agency (EASA) 

Airworthiness Directive 2012–0219, dated 

October 19, 2012, for related information, 

which can be found in the AD docket on the 

Internet at http://www.regulations.gov. 

(2) For service information identified in 

this AD, contact Fokker Services B.V., 

Technical Services Dept., P.O. Box 1357, 

2130 EL Hoofddorp, the Netherlands; 

telephone +31 (0)88–6280–350; fax +31 

(0)88–6280–111; email technicalservices@

fokker.com; Internet http://

www.myfokkerfleet.com. You may review 

copies of the referenced service information 

at the FAA, Transport Airplane Directorate, 

1601 Lind Avenue SW., Renton, WA. For 

information on the availability of this 

material at the FAA, call 425–227–1221. 

Issued in Renton, Washington, on August 

16, 2013. 

Jeffrey E. Duven, 

Acting Manager, Transport Airplane 

Directorate, Aircraft Certification Service. 

[FR Doc. 2013–20585 Filed 8–22–13; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF EDUCATION 

34 CFR Part 200 

RIN 1810–AB16 

[Docket ID ED–2012–OESE–0018] 

Title I—Improving the Academic 

Achievement of the Disadvantaged 

AGENCY: Office of Elementary and 

Secondary Education, Department of 

Education. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Secretary proposes to 

amend the regulations governing Title I, 

Part A of the Elementary and Secondary 

Education Act of 1965, as amended 

(ESEA) (the ‘‘Title I regulations’’), to no 

longer authorize a State, in satisfying 

ESEA accountability requirements, to 

define modified academic achievement 

standards and develop alternate 

assessments based on those modified 

academic achievement standards. These 

proposed amendments would permit, as 

a transitional measure and for a limited 

period of time, States that administered 

alternate assessments based on modified 

academic achievement standards in the 

2012–13 school year to continue to 

administer alternate assessments based 

on modified academic achievement 

standards and include the results in 

adequate yearly progress (AYP) 

calculations, subject to limitations on 

the number of proficient scores that may 

be counted for AYP purposes. These 

proposed amendments also would apply 

to accountability determinations made 

by eligible States that receive ‘‘ESEA 

flexibility’’ and have requested a waiver 

of making AYP determinations. 

DATES: We must receive your comments 

on or before October 7, 2013. 

ADDRESSES: Submit your comments 

through the Federal eRulemaking Portal 

or via postal mail, commercial delivery, 

or hand delivery. We will not accept 

comments by fax or by email. To ensure 

that we do not receive duplicate copies, 

please submit your comments only 

once. In addition, please include the 

Docket ID at the top of your comments. 

• Federal eRulemaking Portal: Go to 

www.regulations.gov to submit your 

comments electronically. Information 

on using Regulations.gov, including 

instructions for accessing agency 

documents, submitting comments, and 

viewing the docket, is available on the 

site under ‘‘How To Use This Site.’’ 

• Postal Mail, Commercial Delivery, 

or Hand Delivery. If you mail or deliver 

your comments about these proposed 

regulations, address them to Monique 

M. Chism, Director, Student 

Achievement and School Accountability 

Programs, Office of Elementary and 

Secondary Education, U.S. Department 

of Education, 400 Maryland Avenue 

SW., Room 3W224, Washington, DC 

20202–6132. 

Privacy Note: The Department’s policy is 

to make all comments received from 

members of the public available for public 

viewing in their entirety on the Federal 

eRulemaking Portal at www.regulations.gov. 

Therefore, commenters should be careful to 

include in their comments only information 

that they wish to make publicly available. 

FOR FURTHER INFORMATION CONTACT: 

Monique M. Chism, U.S. Department of 

Education, 400 Maryland Avenue SW., 

Room 3W224, Washington, DC 20202– 

6132. Telephone: (202) 260–0826. 

If you use a telecommunications 

device for the deaf (TDD) or a text 

telephone (TTY), call the Federal Relay 

Service (FRS), toll free, at 1–800–877– 

8339. 

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 Orders 12866 

and 13563 and their overall requirement 

of reducing regulatory burden that 

might result from these proposed 

regulations. Please let us know of any 

further ways we could reduce potential 

costs or increase potential benefits 

while preserving the effective and 

efficient administration of the 

Department’s programs and activities. 

During and after the comment period, 

you may inspect all public comments 

about these proposed regulations by 

accessing Regulations.gov. You may also 

inspect the comments in person in 

3W226 at 400 Maryland Avenue SW., 

Washington, DC, between the hours of 

8:30 a.m. and 4:00 p.m., Washington, 

DC time, Monday through Friday of 

each week except Federal holidays. 

Please contact the person listed under 

FOR FURTHER INFORMATION CONTACT. 

Assistance to Individuals with 

Disabilities in Reviewing the 

Rulemaking Record: On request, we will 

provide an appropriate accommodation 

or auxiliary 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 

mstockstill on DSK4VPTVN1PROD with PROPOSALS

52468 Federal Register / Vol. 78, No. 164 / Friday, August 23, 2013 / Proposed Rules 

1The Department is offering States flexibility 

from certain requirements of the ESEA in exchange 

for implementing rigorous, comprehensive Statedeveloped plans designed to improve educational 

outcomes for all students, close achievement gaps, 

increase equity, and improve the quality of 

instruction. Under this initiative, known as ‘‘ESEA 

flexibility,’’ a State may request a waiver of the 

requirements to make AYP determinations and 

instead use its own differentiated State-developed 

recognition, accountability, and support system to 

hold schools accountable. Accordingly, a State that 

meets the criteria in these proposed regulations, 

subject to the limitations on the number of 

proficient scores that may be counted for making 

AYP determinations in § 200.13(c), which is not 

waived under ESEA flexibility, could count the 

proficient scores of students with disabilities 

assessed using alternate assessments based on 

modified academic achievement standards in 

making accountability determinations, including 

determinations of whether schools meet a State’s 

annual measurable objectives (AMOs). 

you want to schedule an appointment 

for this type of accommodation or 

auxiliary aid, please contact the person 

listed under FOR FURTHER INFORMATION

CONTACT. 

Background 

These proposed regulations would 

amend the Title I regulations that are 

designed to help disadvantaged children 

meet high academic standards. 

Specifically, the proposed amendments 

to current §§ 200.1 and 200.6 would no 

longer authorize a State to define 

modified academic achievement 

standards for certain students with 

disabilities, develop and administer 

alternate assessments based on those 

standards, and, subject to limitations on 

the number of proficient scores that may 

be counted for AYP purposes under 

current § 200.13(c), use the scores from 

those alternate assessments in AYP 

calculations. 

In April 2007, the Department 

amended the Title I regulations to 

permit States to define modified 

academic achievement standards for 

certain students with disabilities, 

specifically those whose disability has 

precluded them from achieving gradelevel proficiency and whose progress is 

such that they will not reach grade-level 

proficiency in the same time frame as 

other students. The Department also 

amended the Title I regulations to 

permit States to develop alternate 

assessments based on those modified 

academic achievement standards and 

administer them to eligible students 

with disabilities (72 FR 17748). 

As explained in the preamble to the 

final regulations published in the 

Federal Register on April 9, 2007 (72 FR 

17748), the Department acknowledged 

the possibility that neither a general 

assessment nor an alternate assessment 

based on alternate academic 

achievement standards would provide 

an accurate assessment of what these 

students know and can do. This 

position was based on information 

received from some States, as well as 

research available at the time, which 

indicated that general grade-level 

assessments may be too difficult for this 

small group of students with 

disabilities, while alternate assessments 

based on alternate academic 

achievement standards may be too easy. 

Thus, in the interest of ensuring that 

States could meaningfully assess these 

students’ achievement across the full 

range of content and provide teachers 

and parents with information that 

would help these students progress 

toward grade-level achievement, the 

Department issued regulations to permit 

States to define modified academic 

achievement standards and develop and 

administer alternate assessments based 

on those standards. 

Since the Department amended the 

Title I regulations in April 2007, many 

States have been working 

collaboratively to develop and 

implement general assessments aligned 

with college- and career-ready standards 

that will be more accessible to students 

with disabilities than those in place at 

the time States began developing 

alternate assessments based on modified 

academic achievement standards. These 

new general assessments will facilitate 

the valid, reliable, and fair assessment 

of most students with disabilities, 

including those for whom alternate 

assessments based on modified 

academic achievement standards were 

intended. 

As described later in this notice, 

research has shown that low-achieving 

students with disabilities make 

academic progress when provided with 

appropriate supports and instruction. 

More accessible general assessments, in 

combination with such supports and 

instruction for students with 

disabilities, can promote high 

expectations for all students, including 

students with disabilities, by 

encouraging teaching and learning to 

the academic achievement standards 

measured by the general assessments. 

For these reasons, these proposed 

regulations anticipate that alternate 

assessments based on modified 

academic achievement standards will 

no longer be needed as States develop 

more accessible general assessments 

that can also be used for those students 

with disabilities for whom alternate 

assessments based on modified 

academic achievement standards 

currently are being administered. 

Accordingly, States would be able to 

refocus their assessment efforts and 

resources on the development of more 

accessible general assessments. For 

students with the most significant 

cognitive disabilities, States will 

continue to have the authority under 

§§ 200.1(d) and 200.6(a)(2)(ii)(B) to 

define alternate academic achievement 

standards, administer alternate 

assessments based on those alternate 

academic achievement standards, and, 

subject to limitations on the number of 

proficient scores that may be counted 

for AYP purposes, include the results in 

AYP calculations. 

To allow for a smooth transition to 

more accessible general assessment 

systems, including systems with 

assessments aligned with college- and 

career-ready standards, these proposed 

regulations would allow States, under 

certain circumstances and for a limited 

period of time, to continue to 

implement their alternate assessments 

based on modified academic 

achievement standards and, subject to 

limitations on the number of proficient 

scores that may be counted for AYP 

purposes in current § 200.13(c), include 

the results of such assessments in AYP 

calculations.1 More specifically, under 

these proposed regulations, a State 

could continue to administer alternate 

assessments based on modified 

academic achievement standards and 

use the results of those assessments for 

accountability purposes in accordance 

with the current Title I regulations and 

Part B of the Individuals with 

Disabilities Education Act (IDEA) if the 

State administered alternate 

assessments based on modified 

academic achievement standards in the 

2012–13 school year. A State meeting 

this criterion would be permitted to 

administer alternate assessments based 

on modified academic achievement 

standards and use the results of those 

assessments for accountability purposes 

through the 2013–14 school year. 

Although these proposed regulations 

do not amend the regulations 

implementing Part B of the IDEA in 34 

CFR part 300, they nonetheless will 

affect the application of the assessment 

regulations under 34 CFR 300.160. 

Under section 612(a)(16)(A) of the IDEA 

and 34 CFR 300.160(a), a State must 

ensure that all children with disabilities 

are included in all general State and 

district-wide assessment programs, 

including assessments described under 

section 1111 of the ESEA, if necessary 

with appropriate accommodations and 

alternate assessments, as indicated in 

their respective individualized 

education programs (IEPs). Under 

§ 300.160(c)(1), a State (or, in the case of 

a district-wide assessment, a local 

educational agency (LEA)) must develop 

and implement alternate assessments 

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2For example, see: Allor, J. H., Mathes, P. G., 

Roberts, J. K., Cheatham, J.P., & Champlin, T. M. 

(2010). Comprehensive reading instruction for 

students with intellectual disabilities. Psychology in 

the Schools, 47, 445–466; Kamps, D., Abbott, M., 

Greenwood, C., Wills, H., Veerkamp, M., & 

Kaufman, J. (2008). Effects of small-group reading 

instruction and curriculum differences for students 

most at risk in kindergarten: Two-year results for 

secondary- and tertiary-level interventions. Journal 

of Learning Disabilities, 41, 101–114; Mautone, J. 

A., DuPaul, G. J., Jitendra, A. K., Tresco, K. E., 

Junod, R. V., & Volpe, R. J. (2009). The relationship 

between treatment integrity and acceptability of 

reading interventions for children with attentiondeficit/hyperactivity disorder. Psychology in the 

Schools, 46, 919–931; Scammacca, N., Vaughn, S., 

Roberts, G., Wanzek, J., & Torgesen, J. K. (2007). 

Extensive reading interventions in grades K–3: 

From research to practice. Portsmouth, N.H.: RMC 

Research Corporation, Center on Instruction; 

Vaughn, S., Denton, C. A., & Fletcher, J. M. (2010). 

Why intensive interventions are necessary for 

Continued 

and guidelines for the participation of 

children with disabilities in alternate 

assessments for those children who 

cannot participate in regular 

assessments even with the 

accommodations provided for in their 

IEPs. Section 300.160(c)(2)(ii) further 

provides that, if a State has adopted 

modified academic achievement 

standards to assess the academic 

progress of students with disabilities 

under Title I of the ESEA, it must 

measure the achievement of children 

with disabilities meeting the State’s 

criteria under current § 200.1(e)(2) 

against those standards. Thus, the 

proposed regulations would mean that 

the transition from alternate 

assessments based on modified 

academic achievement standards under 

Title I of the ESEA also would apply to 

how States include children with 

disabilities in these assessments under 

the IDEA. However, to the extent that a 

State is permitted to administer 

alternate assessments based on modified 

academic achievement standards, 

§ 300.160(c)(2)(ii) will continue to 

apply. 

Significant Proposed Regulations 

We discuss substantive issues under 

the sections of the proposed regulations 

to which they pertain. Generally, we do 

not address proposed regulatory 

provisions that are technical or 

otherwise minor in effect. 

Section 200.1—State Responsibilities for 

Developing Challenging Academic 

Standards 

Statute: Section 1111(b)(1) of the 

ESEA requires each State to adopt 

challenging academic content standards 

and challenging student academic 

achievement standards in at least 

mathematics, reading or language arts, 

and science. These standards must be 

the same for all public elementary and 

secondary schools and all public school 

students in the State. The State’s 

challenging academic content standards 

must specify what all students are 

expected to know and be able to do, 

contain coherent and rigorous content, 

and encourage the teaching of advanced 

skills. The State’s challenging student 

academic achievement standards must 

be aligned with the State’s academic 

content standards and must describe at 

least three levels of achievement: 

Advanced, proficient, and basic. 

Current Regulations: Current § 200.1 

of the Title I regulations implements the 

statutory requirements in section 

1111(b)(1) of the ESEA regarding the 

development of challenging academic 

content standards and challenging 

academic achievement standards. 

Regarding academic achievement 

standards, current § 200.1(e)(1) permits 

a State to define modified academic 

achievement standards for eligible 

students with disabilities, so long as 

those standards are aligned with the 

State’s academic content standards for 

the grade in which the student is 

enrolled, are challenging for eligible 

students (but may be less difficult than 

the grade-level academic achievement 

standards under current § 200.1(c)), 

include at least three achievement 

levels, and are developed through a 

documented and validated standardssetting process that includes broad 

stakeholder input. 

For a State implementing modified 

academic achievement standards, 

current § 200.1(e)(2) requires the State to 

adopt criteria for IEP teams to use in 

determining which students with 

disabilities are eligible to be assessed 

based on modified academic 

achievement standards. At a minimum, 

these criteria must include the 

following: 

(i) The student’s disability has 

precluded the student from achieving 

grade-level proficiency, as demonstrated 

by objective evidence; 

(ii) The student’s progress to date 

(based on multiple measurements over a 

period of time that are valid for the 

subjects being assessed) in response to 

appropriate instruction, including 

special education and related services 

designed to address the student’s 

individual needs, is such, that even if 

significant growth occurs, the IEP team 

is reasonably certain that the student 

will not achieve grade-level proficiency 

within the year covered by the student’s 

IEP; and 

(iii) If the student’s IEP includes goals 

for a subject assessed under § 200.2, 

those goals are based on the academic 

content standards for the grade in which 

the student is enrolled. 

In addition, current § 200.1(f) requires 

a State to establish guidelines related to 

assessing eligible students with 

disabilities with alternate assessments 

based on modified academic 

achievement standards. In particular, 

current § 200.1(f)(1)(i)(B) requires a 

State to establish and monitor 

implementation of guidelines for IEP 

teams to apply in determining which 

students with disabilities meet the 

State’s criteria to be assessed based on 

modified academic achievement 

standards under current § 200.1(e)(2) 

and provides that these students may be 

assessed based on modified academic 

achievement standards in one or more 

subjects. Current § 200.1(f)(2) specifies 

additional requirements for State 

guidelines for students assessed based 

on modified academic achievement 

standards. 

Proposed Regulations: Under these 

proposed amendments, current 

§ 200.1(e) would be amended to limit a 

State’s authority to define modified 

academic achievement standards. 

Specifically, we propose to amend 

current § 200.1(e)(1) to no longer 

authorize a State to define modified 

academic achievement standards, unless 

the State meets certain criteria. 

Under proposed § 200.1(e)(2), a State 

could define modified academic 

achievement standards only if the State 

administered alternate assessments 

based on modified academic 

achievement standards in the 2012–13 

school year. 

Proposed § 200.1(e)(4) would then 

provide that, for any State meeting the 

criterion in proposed § 200.1(e)(2), the 

authority to define modified academic 

achievement standards terminates at the 

end of the 2013–14 school year. The 

remaining requirements in current 

§ 200.1 applicable to modified academic 

achievement standards, as well as those 

requirements related to determining 

student eligibility to be assessed based 

on alternate academic achievement 

standards, would remain unchanged 

and fully applicable to a State that has 

adopted such standards. 

Finally, we would redesignate current 

paragraph (e)(2) of § 200.1 as paragraph 

(e)(3) to accommodate the proposed 

additions of new paragraphs (e)(2) and 

(e)(4), as described in the preceding 

paragraphs. 

Reasons: Through these proposed 

amendments to § 200.1, we seek to 

reemphasize the importance of holding 

all students, including students with 

disabilities, to high standards. Research 

demonstrates that low-achieving 

students with disabilities who struggle 

in reading 2 and low-achieving students 

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52470 Federal Register / Vol. 78, No. 164 / Friday, August 23, 2013 / Proposed Rules 

students with severe reading difficulties. 

Psychology in the Schools, 47, 32–444; Wanzek, J. 

& Vaughn, S. (2010). Tier 3 interventions for 

students with significant reading problems. Theory 

Into Practice, 49, 305–314. 3For example, see: Fuchs, L. S. & Fuchs, D., 

Powell, S. R., Seethaler, P. M., Cirino, P. T., & 

Fletcher, J. M. (2008). Intensive intervention for 

students with mathematics disabilities: Seven 

principles of effective practice. Learning Disabilities 

Quarterly, 31, 79–92; Gersten, R., Beckmann, S., 

Clarke, B., Foegen, A., Marsh, L., Star, J. R., & 

Witzel, B. (2009). Assisting students struggling with 

mathematics: Response to Intervention (RtI) for 

elementary and middle schools (NCEE 2009–4060). 

Washington, DC: National Center for Education 

Evaluation and Regional Assistance, Institute of 

Education Sciences, U.S. Department of Education. 

Retrieved November 1, 2010 from http://ies.ed.gov/ 

ncee/wwc/publications/practiceguides/. 

with disabilities who struggle in 

mathematics 3 can make academic 

progress when provided appropriate 

supports and instruction. As noted 

earlier in the preamble, many States are 

now working together to develop and 

implement new general assessments 

that will be more accessible to most 

students with disabilities. More 

specifically, 44 States and the District of 

Columbia are participating in two 

consortia, funded by the Race to the Top 

Assessment (RTTA) program, that are 

developing new assessments to measure 

student achievement against collegeand career-ready standards. As stated in 

the notice inviting applications for the 

RTTA program, published in the 

Federal Register on Friday, April 9, 

2010, these assessments must be valid, 

reliable, and fair for all student 

subgroups, including students with 

disabilities (see 75 FR 18171, 18173). 

The only exception is for students with 

disabilities who are eligible to 

participate in alternate assessments 

based on alternate academic 

achievement standards under 34 CFR 

200.6(a)(2)(ii)(B); those students are 

excluded from the definition of 

‘‘students with disabilities’’ under the 

RTTA program (see 75 FR 18171, 

18178). We expect that the application 

of universal design principles, new 

technologies, and new research on 

accommodations to the new 

assessments developed through the 

RTTA program will improve access to 

the assessments and the validity of 

scores for students with disabilities, 

including students who currently are 

eligible for alternate assessments based 

on modified academic achievement 

standards. Other new assessments also 

may draw on universal design 

principles, new technologies, and new 

research to improve access for students 

with disabilities and more validly 

measure the achievement of these 

students. 

With the development and 

implementation of more accessible 

general assessments, combined with 

appropriate supports and instruction, 

we believe that modified academic 

achievement standards and alternate 

assessments based on those standards 

will no longer be educationally 

appropriate. Consequently, it is no 

longer in the best interest of students 

with disabilities for a State to invest 

further resources in the development or 

refinement of modified academic 

achievement standards and alternate 

assessments based on those standards. 

Rather, resources for future assessment 

development are best focused on 

preparing for implementation of more 

accessible general assessments, such as 

those currently being developed in 

many States. Therefore, these proposed 

regulations would no longer authorize a 

State to define modified academic 

achievement standards and administer 

alternate assessments based on those 

standards. 

Although we believe that new, more 

accessible assessments will eliminate 

the need for modified academic 

achievement standards and alternate 

assessments based on those standards, 

we recognize that these new 

assessments cannot be implemented 

immediately. In particular, we recognize 

that assessments being developed 

through the RTTA program are not 

expected to be fully operational in all 

participating States until the 2014–15 

school year. We also recognize that 

some States have devoted substantial 

resources toward developing and 

implementing alternate assessments 

based on modified academic 

achievement standards. For these 

reasons, we believe that providing 

States with time to move from alternate 

assessments based on modified 

academic achievement standards and 

complete development of more 

accessible general assessments, such as 

those aligned with college- and careerready standards that are currently being 

developed in many States, will support 

a smooth transition between 

assessments for the students affected by 

this regulatory change. Accordingly, 

proposed § 200.1(e)(2) would permit a 

State that administered alternate 

assessments based on modified 

academic achievement standards in the 

2012–13 school year to continue to 

administer those alternate assessments. 

Proposed § 200.1(e)(4) would require a 

State to terminate its use of such 

alternate assessments, and 

concomitantly its use of modified 

academic achievement standards, at the 

end of the 2013–14 school year. In 

setting this proposed timeline, we 

believe we have provided States 

sufficient time and notice to phase out 

their alternate assessments based on 

modified academic achievement 

standards. Moreover, any State 

interested in ESEA flexibility knew as 

early as September 2011 that alternate 

assessments based on modified 

academic achievement standards were 

not part of the definition of high-quality 

assessments that are required to be 

administered beginning in 2014–15. 

Section 200.6—Inclusion of All Students 

Statute: Section 1111(b)(3)(C) of the 

ESEA requires, among other things, that 

a State’s academic assessment system be 

aligned with the State’s challenging 

academic content and student academic 

achievement standards and that it 

measure the achievement of all students 

in the grades assessed, including 

students with disabilities as defined 

under section 602(3) of the IDEA. For 

students with disabilities in particular, 

under section 1111(b)(3)(C)(ix)(II) of the 

ESEA, a State’s academic assessment 

system must provide for reasonable 

accommodations necessary to measure 

their academic achievement against the 

State’s academic content and 

achievement standards that all students 

are expected to meet. 

Current Regulations: Current § 200.6 

sets forth the requirements under which 

a State must provide for the 

participation of all students in the 

State’s academic assessment system. 

Current § 200.6(a)(3) permits a State to 

develop and implement alternate 

assessments to assess eligible students 

with disabilities based on modified 

academic achievement standards. In 

particular, current § 200.6(a)(3)(ii) 

provides that any alternate assessments 

based on modified academic 

achievement standards must—(i) be 

aligned with the State’s grade-level 

academic content standards; (ii) yield 

results that measure the achievement of 

those students separately in reading or 

language arts and in mathematics 

relative to the modified academic 

achievement standards; (iii) meet the 

requirements in §§ 200.2 and 200.3, 

including the requirements relating to 

validity, reliability, and high technical 

quality; and (iv) fit coherently in the 

State’s overall assessment system. 

In addition, current § 200.6(a)(4) 

requires a State to report to the 

Secretary the number and percentage of 

students with disabilities taking regular 

assessments described in § 200.2, 

regular assessments with 

accommodations, alternate assessments 

based on the grade-level academic 

achievement standards described in 

§ 200.1(c), alternate assessments based 

on the modified academic achievement 

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Federal Register / Vol. 78, No. 164 / Friday, August 23, 2013 / Proposed Rules 52471 

standards described in § 200.1(e), and 

alternate assessments based on the 

alternate academic achievement 

standards described in § 200.1(d). 

Proposed Regulations: We propose to 

amend § 200.6(a)(3)(i) to no longer 

authorize a State to develop and 

administer alternate assessments based 

on modified academic achievement 

standards for ESEA assessment and 

accountability purposes, unless the 

State administered alternate 

assessments based on modified 

academic achievement standards in the 

2012–13 school year. 

Under proposed § 200.6(a)(3)(ii), a 

State would be able to administer 

alternate assessments based on modified 

academic achievement standards and 

use the results of these assessments in 

accountability determinations only if 

the State administered alternate 

assessments based on modified 

academic achievement standards in the 

2012–13 school year. Additionally, a 

State meeting this criterion would be 

further limited on how long it could use 

these assessments. Under proposed 

§ 200.6(a)(3)(iv), such a State would 

only be able to administer and use the 

results of these assessments for 

accountability determinations through 

the 2013–14 school year. All other 

requirements in current § 200.6 

applicable to alternate assessments 

based on modified academic 

achievement standards would remain 

unchanged and fully applicable to 

States administering these alternate 

assessments. Please note that, to the 

extent a State is permitted to administer 

alternate assessments based on modified 

academic achievement standards, 

inclusion of the results in accountability 

determinations would remain subject to 

limitations on the number of proficient 

scores that may be counted for AYP 

purposes in current § 200.13(c). 

Finally, for the sake of readability, we 

would redesignate current paragraph 

(a)(3)(ii) of § 200.6 as paragraph 

(a)(3)(iii) to accommodate the proposed 

additions of new paragraphs (a)(3)(ii) 

and (a)(3)(iv), as described in the 

preceding paragraphs. 

Reasons: For the reasons discussed 

earlier with respect to the proposed 

amendments to § 200.1(e), the proposed 

amendments to § 200.6 are necessary to 

make clear the limitations on a State’s 

authority to develop and administer 

alternate assessments based on modified 

academic achievement standards. 

Executive Orders 12866 and 13563 

Regulatory Impact Analysis 

Under Executive Order 12866, the 

Secretary must determine whether this 

regulatory action is ‘‘significant’’ and, 

therefore, subject to the requirements of 

the Executive order and subject to 

review by the Office of Management and 

Budget (OMB). Section 3(f) of Executive 

Order 12866 defines a ‘‘significant 

regulatory action’’ as an action likely to 

result in a rule that may— 

(1) Have an annual effect on the 

economy of $100 million or more, or 

adversely affect a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities in a material way (also 

referred to as an ‘‘economically 

significant’’ rule); 

(2) Create serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impacts of entitlement grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

stated in the Executive order. 

This proposed regulatory action is a 

significant regulatory action subject to 

review by OMB under section 3(f) of 

Executive Order 12866. 

We have also reviewed these 

regulations under Executive Order 

13563, which supplements and 

explicitly reaffirms the principles, 

structures, and definitions governing 

regulatory review established in 

Executive Order 12866. To the extent 

permitted by law, Executive Order 

13563 requires that an agency— 

(1) Propose or adopt regulations only 

on a reasoned determination that their 

benefits justify their costs (recognizing 

that some benefits and costs are difficult 

to quantify); 

(2) Tailor its regulations to impose the 

least burden on society, consistent with 

obtaining regulatory objectives and 

taking into account—among other things 

and to the extent practicable—the costs 

of cumulative regulations; 

(3) In choosing among alternative 

regulatory approaches, select those 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety, 

and other advantages; distributive 

impacts; and equity); 

(4) To the extent feasible, specify 

performance objectives, rather than the 

behavior or manner of compliance a 

regulated entity must adopt; and 

(5) Identify and assess available 

alternatives to direct regulation, 

including economic incentives—such as 

user fees or marketable permits—to 

encourage the desired behavior, or 

provide information that enables the 

public to make choices. 

Executive Order 13563 also requires 

an agency ‘‘to use the best available 

techniques to quantify anticipated 

present and future benefits and costs as 

accurately as possible.’’ The Office of 

Information and Regulatory Affairs of 

OMB has emphasized that these 

techniques may include ‘‘identifying 

changing future compliance costs that 

might result from technological 

innovation or anticipated behavioral 

changes.’’ 

We are issuing these regulations only 

on a reasoned determination that their 

benefits justify their costs. In choosing 

among alternative regulatory 

approaches, we selected those 

approaches that maximize net benefits. 

Based on the analysis that follows, the 

Department believes that these proposed 

regulations are consistent with the 

principles in Executive Order 13563. 

We also have determined that this 

regulatory action would not unduly 

interfere with State, local, and tribal 

governments in the exercise of their 

governmental functions. 

In accordance with both Executive 

orders, the Department has assessed the 

potential costs and benefits of this 

regulatory action. The potential costs 

associated with this regulatory action 

are those resulting from statutory 

requirements and those we have 

determined as necessary for 

administering the Department’s 

programs and activities. 

Potential Costs and Benefits: Under 

Executive Order 12866, we have 

assessed the potential costs and benefits 

of this regulatory action and have 

determined that these proposed 

regulations would not impose 

additional costs to State and local 

educational agencies or to the Federal 

Government. For example, each of the 

forty States and the District of Columbia 

that has received ESEA flexibility has 

agreed to phase out its use of alternate 

assessments based on modified 

academic achievement standards, if it 

has those assessments, by the 2014–15 

school year. Only California, North 

Dakota, and Texas have an alternate 

assessment based on modified academic 

achievement standards but have not 

received ESEA flexibility, and Texas’ 

request for ESEA flexibility is pending. 

Moreover, the proposed regulations 

would not impose additional costs or 

administrative burdens on the large 

majority of States, including California 

and North Dakota, that are working 

collaboratively through the RTTA 

program to develop and implement 

general assessments aligned with 

college- and career-ready standards that 

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52472 Federal Register / Vol. 78, No. 164 / Friday, August 23, 2013 / Proposed Rules 

will be more accessible to students with 

disabilities than those in place at the 

time States began developing alternate 

assessments based on modified 

academic achievement standards. Under 

the RTTA program requirements, these 

new assessments already must be valid, 

reliable, and fair for all student 

subgroups, including students with 

disabilities, with the exception of 

students with disabilities who are 

eligible to participate in alternate 

assessments based on alternate 

academic achievement standards 

consistent with 34 CFR 200.6(a)(2)(ii)(B) 

(see 75 FR 18171, 18173). 

In this context, the proposed 

regulations largely reflect already 

planned and funded changes in 

assessment practices and would not 

impose additional costs on States or 

LEAs or the Federal Government. On 

the contrary, to the extent that the 

proposed regulations reinforce the 

transition to State assessment systems 

with fewer components, the Department 

believes these proposed regulations 

ultimately would reduce the costs of 

complying with ESEA assessment 

requirements (because States would no 

longer have to develop and implement 

separate alternate assessments based on 

modified academic achievement 

standards). 

Further, a State that administered 

alternate assessments based on modified 

academic achievement standards in the 

2012–13 school year would be 

permitted to continue to use such 

assessments through the 2013–14 school 

year. Thus, the proposed regulations 

would not impose any new costs on 

States that have already developed 

modified academic achievement 

standards and alternate assessments 

based on those standards. The proposed 

regulations also would not impose 

significant additional costs on States 

that have not developed modified 

academic achievement standards 

because the proposed regulations do not 

place any additional requirements on 

such States. In addition, to the extent 

that the proposed regulations encourage 

States to strengthen their plans to 

transition to new general assessments 

that would be used to assess students 

currently taking alternate assessments 

based on modified academic 

achievement standards, funding to 

support such a transition is available 

through existing ESEA programs, such 

as the Grants for State Assessments 

program, which will make available 

$360 million in State formula grant 

assistance in fiscal year 2012. 

In sum, the additional costs imposed 

on States by the proposed regulations 

are estimated to be negligible, primarily 

because they reflect changes already 

under way in State assessment systems 

under the ESEA. Moreover, we believe 

these costs are significantly outweighed 

by the potential educational benefits of 

increasing the access of students with 

disabilities to the general assessments as 

States develop new, more accessible 

assessments, including assessments 

aligned with college- and career-ready 

standards. 

Regulatory Alternatives Considered 

An alternative to the amendments 

proposed in this notice would be for the 

Secretary to leave in place the existing 

regulations permitting the development 

and administration of alternate 

assessments based on modified 

academic achievement standards. 

However, the Department believes that 

the proposed regulations are needed to 

help refocus assessment efforts and 

resources on the development of new 

general assessments that are accessible 

to a broader range of students with 

disabilities. Such new general 

assessments will eliminate the 

usefulness of separate alternate 

assessments based on modified 

academic achievement standards for 

eligible students with disabilities. 

Clarity of the Regulations 

Executive Order 12866 and the 

Presidential memorandum ‘‘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, 

§ 200.1(e)(1).) 

• 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? 

To send any comments that concern 

how the Department could make these 

proposed regulations easier to 

understand, see the instructions in the 

ADDRESSES section of this 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. 

The small entities that this proposed 

regulatory action would affect are small 

LEAs administering assessments under 

the ESEA. 

These proposed regulations would not 

have a significant economic impact on 

small LEAs because most affected LEAs 

would continue to implement existing 

State assessments required by the ESEA, 

including general assessments and 

alternate assessments for certain 

students with disabilities, until either 

the reauthorization of the ESEA or the 

implementation of new State 

assessments aligned with college- and 

career-ready standards. In addition, the 

implementation of these new 

assessments can be expected to result in 

a positive economic impact by reducing 

the number of separate assessments that 

must be administered to comply with 

the ESEA. 

The Secretary invites comments from 

small LEAs as to whether they believe 

this proposed regulatory action would 

have a significant economic impact on 

them and, if so, requests evidence to 

support that belief. 

Paperwork Reduction Act of 1995 

These proposed regulations do not 

contain any information collection 

requirements. 

Intergovernmental Review 

This program is not subject to 

Executive Order 12372 and the 

regulations in 34 CFR part 79. 

Accessible Format: Individuals with 

disabilities can obtain this document in 

an accessible format (e.g., braille, large 

print, audiotape, or compact disc) on 

request to the program contact person 

listed under FOR FURTHER INFORMATION

CONTACT. 

Electronic Access to This Document: 

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 via the Federal Digital System 

at: www.gpo.gov/fdsys. At this site you 

can view this document, as well as all 

other documents of this Department 

published in the Federal Register, in 

text or Adobe Portable Document 

Format (PDF). To use PDF you must 

have Adobe Acrobat Reader, which is 

available free at the site. 

mstockstill on DSK4VPTVN1PROD with PROPOSALS

Federal Register / Vol. 78, No. 164 / Friday, August 23, 2013 / Proposed Rules 52473 

You may also access documents of the 

Department published in the Federal 

Register by using the article search 

feature at: www.federalregister.gov. 

Specifically, through the advanced 

search feature at this site, you can limit 

your search to documents published by 

the Department. 

(Catalog of Federal Domestic Assistance 

Numbers: 84.010 Improving Programs 

Operated by Local Educational Agencies; 

84.027 Assistance to States for the Education 

of Children with Disabilities) 

List of Subjects in 34 CFR Part 200 

Education of disadvantaged, 

Elementary and secondary education, 

Grant programs—education, Indians— 

education, Infants and children, 

Juvenile delinquency, Migrant labor, 

Private schools, Reporting and 

recordkeeping requirements. 

Dated: August 20, 2013. 

Arne Duncan, 

Secretary of Education. 

For the reasons discussed in the 

preamble, the Secretary proposes to 

amend part 200 of title 34 of the Code 

of Federal Regulations as follows: 

PART 200—TITLE I—IMPROVING THE 

ACADEMIC ACHIEVEMENT OF THE 

DISADVANTAGED 

■ 1. The authority citation for part 200 

continues to read as follows: 

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

unless otherwise noted. 

■ 2. Section 200.1 is amended by: 

■ A. Revising paragraph (e)(1) 

introductory text. 

■ B. Redesignating paragraph (e)(2) as 

(e)(3). 

■ C. Adding new paragraph (e)(2) and 

paragraph (e)(4). 

The revision and additions read as 

follows: 

§ 200.1 State responsibilities for 

developing challenging academic 

standards. 

* * * * * 

(e) Modified academic achievement 

standards. (1) Except as provided in 

paragraphs (e)(2) and (e)(4) of this 

section, a State may not define modified 

academic achievement standards for 

students with disabilities under section 

602(3) of the Individuals with 

Disabilities Education Act (IDEA) who 

meet the State’s criteria under paragraph 

(e)(3) of this section. Modified academic 

achievement standards are standards 

that— 

* * * * * 

(2) A State may define modified 

academic achievement standards for 

students with disabilities who meet the 

State’s criteria under paragraph (e)(3) of 

this section only if the State 

administered alternate assessments 

based on modified academic 

achievement standards in the 2012–13 

school year. 

* * * * * 

(4) A State’s authority to define 

modified academic achievement 

standards under paragraph (e)(2) of this 

section terminates following the State’s 

administration of alternate assessments 

based on those standards during the 

2013–14 school year. 

* * * * * 

■ 3. Section 200.6 is amended by: 

■ A. Revising paragraph (a)(3)(i). 

■ B. Redesignating paragraph (a)(3)(ii) 

as (a)(3)(iii). 

■ C. Adding new paragraph (a)(3)(ii) 

and paragraph (a)(3)(iv). 

The revision and additions read as 

follows: 

§ 200.6 Inclusion of all students. 

* * * * * 

(a) * * * 

(3) Alternate assessments that are 

based on modified academic 

achievement standards. (i) Except as 

provided in paragraphs (a)(3)(ii) and (iv) 

of this section, a State may not develop 

and administer an alternate assessment 

based on modified academic 

achievement standards as defined in 

§ 200.1(e)(1) to assess students with 

disabilities who meet the State’s criteria 

under § 200.1(e)(3). 

(ii) A State may continue to 

administer an alternate assessment 

based on modified academic 

achievement standards to assess 

students with disabilities who meet the 

State’s criteria under § 200.1(e)(3) and 

use the results of that assessment for 

accountability determinations only if 

the State administered the assessment in 

the 2012–13 school year. 

* * * * * 

(iv) A State’s authority to administer 

an alternate assessment based on 

modified academic achievement 

standards and use the results for 

accountability determinations 

terminates following the State’s 

administration of that assessment 

during the 2013–14 school year. 

* * * * * 

[FR Doc. 2013–20665 Filed 8–22–13; 8:45 am] 

BILLING CODE 4000–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2013–0060; FRL–9900–26– 

Region 6] 

Approval and Promulgation of 

Implementation Plans; New Mexico; 

Prevention of Significant Deterioration; 

Greenhouse Gas Plantwide 

Applicability Limit Permitting 

Revisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The EPA is proposing to 

approve portions of one revision to the 

New Mexico State Implementation Plan 

(SIP) submitted by the New Mexico 

Environment Department (NMED) to 

EPA on January 8, 2013. The January 8, 

2013, proposed SIP revision adopts 

necessary rule revisions to the PSD 

plantwide applicability limit (PAL) 

permitting provisions to issue PALs to 

GHG sources. EPA is proposing to 

approve the January 8, 2013 SIP revision 

to the New Mexico PSD permitting 

program as consistent with federal 

requirements for PSD permitting. At this 

time, EPA is proposing to sever and take 

no action on the portion of the January 

8, 2013, SIP revision that relates to the 

provisions of EPA’s July 20, 2011 GHG 

Biomass Deferral Rule. EPA is proposing 

this action under section 110 and part 

C of the Clean Air Act (CAA or the Act). 

EPA is not proposing to approve these 

rules within the exterior boundaries of 

a reservation or other areas within any 

Tribal Nation’s jurisdiction. 

DATES: Comments must be received on 

or before September 23, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R06– 

OAR–2013–0060, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

the online instructions for submitting 

comments. 

• Email: Ms. Adina Wiley at 

wiley.adina@epa.gov. 

• Fax: Ms. Adina Wiley, Air Permits 

Section (6PD–R), at fax number 214– 

665–6762. 

• Mail or Delivery: Ms. Adina Wiley, 

Air Permits Section (6PD–R), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 1200, Dallas, Texas 

75202–2733. 

Instructions: Direct your comments to 

Docket ID No. EPA–R06–OAR–2013– 

0060. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http://

mstockstill on DSK4VPTVN1PROD with PROPOSALS