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

66928 Federal Register / Vol. 75, No. 209 / Friday, October 29, 2010 / Rules and RegulationsWReier-Aviles on DSKGBLS3C1PROD with RULES2Changes: None.Administration of Tests (§ 668.151)Comment: One commenter provided anumber of suggestions regarding testadministration security, includingrequiring that (1) test publishers contactthe Department when tests are beingused for ATB and non-ATB purposes,(2) different versions of the test be usedfor different purposes so that oneversion is used exclusively for ATBpurposes, (3) ATB tests only be shippedto test administrators and not toinstitutions, and (4) ATB tests be lockedin an area that cannot be accessed bynon-certified test administrators.Discussion: Many ATB tests that havebeen submitted to the Secretary andsubsequently approved for title IV, HEAstudent eligibility purposes are alsoused for general academic placementpurposes not related to ATB. Regardingthe suggestion that test administratorsreport to the Department when a test isused for ATB purposes, beginning withthe 2011–2012 award year, we willbegin collecting information on the useof an ATB test for each student whoreceives title IV, HEA funds; thereforetest administrators will not have toprovide the information to us. In termsof requiring that approved ATB testsmust be used exclusively for this singlepurpose, that would require a statutorychange. While it has been suggested thatwe revise the regulations to allow ATBtests only be shipped to testadministrators and not to institutions,we believe that this is not feasible giventhat ATB tests are used both for title IV,HEA eligibility and non-title IVpurposes, such as for course placementpurposes. Finally, while it may bepossible that at the discretion of theinstitution’s assessment center (or as aresult of an agreement between the testpublisher or State and the institution)that ATB tests be locked in an area onlyaccessible by certified testadministrators, this may be impracticalsince these tests are used for non-title IVeligibility purposes.Changes: None.Comment: A commenter indicatedthat for computer-based tests,institutions maintain the associatedsystem components on their computers,so test administrators (particularlyindependent test administrators) cannotbe held responsible for maintaining thesecurity of these types of tests, otherthan during the test administration.For paper-and-pencil tests, thecommenter expressed strong concernsregarding independent testadministrators being held responsiblefor storing test materials. Thecommenter stated that independent testadministrators often do not have accessto secure storage, other than at thecampuses where they administer thetest. Use of their home or automobile forstorage and transportation to test sites isclearly unacceptable for security.Institutions typically have a securelocation (a locked facility to which onlythe test administrator and possibly aselect few individuals have a key) wherematerials can be stored. In addition,many institutions use the same testforms for ATB purposes and otherpurposes, and thus would already havecopies of the test forms in storage at theinstitution. The commenter argued thatmaintaining test forms at the institutionwhile emphasizing the chain of custody,under written agreements, will bettercontribute to the goal of keeping testforms secure.Discussion: We disagree. Proposed§ 668.144(c)(16) and (d)(7) require testpublishers and States, respectively, toensure not only that the testadministrator has the training,knowledge, skill and integrity to teststudents in accordance with therequirements of this subpart, and therequirements of the test administrationtechnical manual, but also, that the testadministrator has the ability andfacilities to keep the ATB tests secureagainst disclosure or release. We believethat these requirements are reasonable,and prudent, and will help ensure theintegrity of ATB tests. While at thistime, we are not prescribing how testpublishers or States must make thesedeterminations about their testadministrators, we expect that they willbase their determinations on themeasures taken by the test administratorto protect the security of the tests. Forexample, one could envision a testadministrator satisfying thisrequirement by having a secure safe inthe assessment center where onlycertified test administrators had the keyor combination to obtain the tests. In thecase of an independent testadministrator, one could envision thetest administrator satisfying therequirement by maintaining the tests ina mobile, portable safe or some othersecure device. As these examplesillustrate, test publishers and States willbe required to distinguish betweensecure and non-secure methods ofstoring ATB tests that limit access andprotect against unintended release ordisclosure if these tests are going tocontinue to be used for ATB purposes,otherwise the Secretary will considerthat the test is improperly administered.Changes: None.VerDate Mar2010 14:10 Oct 28, 2010 Jkt 223001 PO 00000 Frm 00098 Fmt 4701 Sfmt 4700 E:\FR\FM\29OCR2.SGM 29OCR2Administration of Tests for IndividualsWhose Native Language Is Not Englishor for Individuals With Disabilities(§ 668.153)Comment: One commenter noted thatif a non-English speaking student is ina program of study which is taught inthe student’s native language and theprogram also has an ESL component orthat at least a portion of the programwill be taught in English, there are twoaspects that need to be tested, thestudent’s reading, verbal andquantitative skills in their own nativelanguage, as well as, their knowledge ofEnglish in order to understand theportion of the program taught inEnglish. The commenter expressedconcern regarding the timing of thesetests.Discussion: We appreciate thiscomment because it highlights the needto address a situation not covered by theproposed regulations. Under proposed§ 668.153(a)(1), we require institutionsto use an ATB test in the student’snative language when the student’snative language is other than Englishand the student will be enrolled in aprogram that is taught in the student’snative language. Paragraphs (a)(2) and(a)(3) of proposed § 668.153 addresssituations where individuals who arenot native speakers of English and whoare not fluent in English are enrolled (orplan to enroll) in a program (a) that istaught in English with an ESLcomponent and (b) that is taught inEnglish without an ESL component,respectively. The proposed regulationsdo not address what happens in the caseof a non-English speaker who isenrolled or plans on enrolling in aprogram that will be taught in his or hernative language that includes an ESLcomponent or a portion of the programwill be taught in English. In situationssuch as these, we believe thatinstitutions should require the studentto take an English proficiencyassessment approved under § 668.148(b)prior to when the English or ESLportion of the program commences.Changes: We have added a newparagraph (a)(5) to § 668.153 to providethat if the individual is a non-nativespeaker of English who is enrolled orplans to enroll in a program that will betaught in his or her native language andthe program includes an ESLcomponent or a portion of the programwill be taught in English, the individualmust take a test approved under§§ 668.146 and 668.148(a)(1) in thestudent’s native language. This newparagraph also provides that prior to thebeginning of the ESL component orwhen the English portion of the program