Office of Postsecondary Education - U.S. Department of Education

66924 Federal Register / Vol. 75, No. 209 / Friday, October 29, 2010 / Rules and RegulationsWReier-Aviles on DSKGBLS3C1PROD with RULES2test must meet all applicable andfeasible standards for test constructionand validity provided in the 1999edition of the Standards for Educationaland Psychological Testing’’).Discussion: As discussed in the 1999edition of the Standards, each standardshould be considered to determine itsapplicability to the test beingconstructed. There may be reasons whya particular standard cannot be adopted;for example, if the test in question isrelatively new, it may not be possible tohave sufficient data for a completeanalysis. As a result of the informationin the 1999 edition of the Standards, wehave made a change to the proposedlanguage in § 668.146(b)(6) to reflectthat tests must meet all applicablestandards. However, we do not believethat we should include all ‘‘feasible’’standards in the regulatory language.We believe that where a standard is notfeasible, it would also not be applicable,as provided in the example, thus theinclusion of the word ‘‘feasible’’ isduplicative.Changes: We have revised§ 668.146(b)(6) by eliminating outdatedreferences to primary, secondary andconditional standards to make theprovision consistent with the languageused in the most recent edition of theStandards.Additional Criteria for the Approval ofCertain Tests (§ 668.148)Comment: One commenter indicatedthat their program of instruction istaught in Spanish to non-Englishspeakers with an English as a SecondLanguage (ESL) component. Thecommenter asked the Department forguidance for populations where there isno approved ATB test in the nativelanguage of the students.Discussion: Under § 668.148, if aprogram is taught in a foreign language,a test in that foreign language wouldneed to satisfy the conditions forapproval under §§ 668.146 and 668.148.Absent an approved ATB test, studentswithout a high school diploma or itsequivalent could meet the alternativeunder proposed § 668.32(e)(5), wherebya student has been determined to havethe ability to benefit from the educationor training offered by the institutionbased upon the satisfactory completionof 6 semester hours, 6 quarter hours, or225 clock hours that are applicabletoward a degree or certificate offered bythat institution where the hours wereearned. If no test is reasonably availablefor students whose native language isnot English and who are not fluent inEnglish, institutions will no longer beable to use any test that has not beenpreviously rejected for approval by theSecretary. We proposed this regulatorychange because we recognized that, inthe last 15 years, no ATB test in aforeign language has been submitted forapproval. Therefore, under the currentATB regulations, any test in a foreignlanguage became an approved ATB testregardless of whether it measured basicverbal and quantitative skills andgeneral learned abilities, whether thepassing scores related to the passingscores of other recent high schoolgraduates, or whether these tests weredeveloped in accordance with the APAstandards. We believe that the removalof this overly broad exception from thecurrent regulations will improvecompliance and works in concert withthe change reflected in § 668.32(e)(5),which allows for an exception whereability to benefit can be measuredagainst a standard (the successfulearning of six credits toward a degree orcertificate program at that institution).Changes: None.Agreement Between the Secretary and aTest Publisher or a State (§ 668.150)Comment: Under proposed§ 668.150(b)(3)(ii), the agreementbetween the Secretary and a testpublisher or a State requires thatcertified test administrators have theability and facilities to keep ATB testssecure. One commenter stated that itdoes not favor storage of ATB testsanywhere other than at the institution.Another commenter offered to workwith the Department and other testpublishers to develop guidelines thatwill improve ATB test security.Discussion: While ATB tests can beused for more than title IV, studenteligibility determination purposes (suchas for other assessment purposes),institutions, assessment center staff, aswell as, independent test administratorswill continue to have access to thesetests. Given this reality, weacknowledge that securing tests andpreventing test disclosure or release isdifficult. We established therequirement in § 668.150(b)(3)(ii) inorder to balance the need for legitimateaccess and security. We appreciate thecommenter’s offer to work with theDepartment and other test publishers todevelop guidelines to improve testsecurity.Changes: None.Comment: One commenter supportedthe requirement in proposed§ 668.150(b)(3)(iii) that only allows testadministrators to be certified when theyhave not been decertified within the lastthree years by any test publisher. Thiscommenter inquired how, other thanthrough self-reporting, a test publisheror State would have the informationVerDate Mar2010 14:10 Oct 28, 2010 Jkt 223001 PO 00000 Frm 00094 Fmt 4701 Sfmt 4700 E:\FR\FM\29OCR2.SGM 29OCR2necessary to meet this requirement. Thecommenter also asked if we intend todevelop, implement, and maintain adatabase of decertified testadministrators.Discussion: Under proposed§ 668.144(c)(16) and (d)(7), a testpublisher and a State, respectively, mustdescribe its test administratorcertification process. The Departmentplans to evaluate each of the testpublisher’s or State’s certification plansto determine how they will obtain theinformation about test administratordecertifications by other test publishersor States. Under proposed§ 668.150(b)(2), each test administratorwill be required to provide to thepublisher or State, as appropriate, acertification statement to indicate thatthe test administrator is not currentlydecertified and that the testadministrator will notify the testpublisher or State immediately if anyother test publisher or State decertifiesthe test administrator. At this time, theDepartment does not plan to establish alist of all decertified test administrators.Changes: None.Comment: One commenter indicatedthat proposed § 668.150(b)(4), whichprovides that test administrators mustbe decertified under certaincircumstances, will require States andtest publishers to take great care whenanalyzing the facts prior to decertifyingany test administrator. Section668.150(b)(4) states that the agreementbetween the Secretary and a testpublisher or a State must require thedecertification of a test administratorwho (a) Fails to administer the test inaccordance with the test publisher’s orState’s requirements, (b) has not keptthe test secure, (c) has compromised theintegrity of the testing process, or (d)violated the test administrationrequirements in § 668.151.One commenter also expressedconcern that proposed § 668.150(b)(4)seems to remove the test publisher’s orState’s discretion about how to addresscertain violations of test administrationrules. That commenter asked whetherother corrective action is still a possibleoutcome, or whether decertification forany violation of the regulations or thetest publisher’s or State’s testadministration requirements is the onlypermissible outcome.Discussion: We understand thecomment regarding decertification oftest administrators and that testpublishers and States will need to takecare when carrying out their obligationsunder these regulations. For example,we expect that a test publisher or Statewould provide an administrator anopportunity to respond to any finding