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					                                             24266                             Federal Register / Vol. 73, No. 86 / Friday, May 2, 2008 / Notices

                                             DEPARTMENT OF EDUCATION                                 contact person listed under FOR FURTHER                    research on teaching LEP students and
                                                                                                     INFORMATION CONTACT.    The comments                       demonstrated to be effective.
                                             Title III of the Elementary and                         will be available for distribution                            The enactment of NCLB marked the
                                             Secondary Education Act of 1965                         electronically, to the extent feasible, and                first time States were required to
                                             (ESEA), as Amended by the No Child                      will be available at the Department’s                      establish ELP standards for LEP
                                             Left Behind Act of 2001 (NCLB)                          Office of English Language Acquisition,                    students. Under the statute, States must
                                                                                                     U.S. Department of Education, 550 12th                     assess, on an annual basis, the progress
                                             AGENCY:  Office of English Language
                                                                                                     Street, SW., Room 10081, Potomac                           of LEP students enrolled in language
                                             Acquisition, U.S. Department of
                                                                                                     Center Plaza, Washington, DC between                       instruction educational programs
                                             Education.
                                                                                                     the hours of 8:30 a.m. and 4 p.m.,                         funded under Title III.2 States must also
                                             ACTION: Notice of proposed                                                                                         define annual measurable achievement
                                                                                                     Eastern time, Monday through Friday of
                                             interpretations.                                                                                                   objectives (AMAOs) and measure
                                                                                                     each week except Federal holidays. On
                                             SUMMARY: The Secretary of Education                     request, we will supply an appropriate                     improvements in the development of
                                             (Secretary) proposes interpretations of                 aid, such as a reader or print magnifier,                  and attainment of English proficiency
                                             several provisions of Title III of the                  to an individual with a disability who                     by LEP students served by Title III.
                                             ESEA regarding the annual                               needs assistance to review the                                The Department recognizes that the
                                             administration of English language                      comments. If you want to schedule an                       specific definition of the term ‘‘LEP
                                             proficiency (ELP) assessments to limited                appointment for this type of aid, please                   students served by Title III’’ and similar
                                             English proficient (LEP) students served                contact the person listed under FOR                        terms used throughout this notice may
                                             by Title III, the establishment and                     FURTHER INFORMATION CONTACT.                               vary across States and subgrantees based
                                             implementation of annual measurable                                                                                on the design of particular language
                                                                                                     SUPPLEMENTARY INFORMATION:                                 instruction educational programs and
                                             achievement objectives (AMAOs) for
                                             States and subgrantees receiving Title III                 Background: The intent of this notice                   professional development programs
                                             funds, and State and local                              is to ensure that all States understand                    implemented using Title III funds. For
                                             implementation of Title III                             and implement the requirements of Title                    example, States and subgrantees may,
                                             accountability provisions.                              III in accordance with the Secretary’s                     for Title III accountability purposes,
                                                Comments: The Department is                          ‘‘bright-line’’ principles of NCLB—                        define ‘‘Title III-served LEP students’’ or
                                             accepting comments on this notice of                    including annual assessments of and                        ‘‘LEP students served by language
                                             proposed interpretations in order that                  accountability for all students—as they                    education instructional programs under
                                             the Department may provide additional                   apply to the implementation of Title III.                  Title III’’ as all LEP students in an LEA
                                             clarification, detail, or guidance                                                                                 or subgrantee jurisdiction. States and
                                                                                                        One of the key goals of Title III of the                subgrantees may also define ‘‘Title III-
                                             regarding these interpretations before                  ESEA is to ensure that LEP students
                                             issuing a notice of final interpretations.                                                                         served LEP students’’ as only those LEP
                                                                                                     attain English language proficiency,                       students within an LEA or subgrantee
                                             DATES: We must receive your comments                    attain high levels of academic
                                             on or before June 2, 2008.                                                                                         jurisdiction who specifically receive
                                                                                                     achievement in English, and meet the                       Title III-funded services.3 The
                                             ADDRESSES: Address all comments about                   same challenging State academic                            Department intends that the
                                             this notice of proposed interpretations                 content and student academic                               interpretations proposed in this notice
                                             to Richard L. Smith, Office of English                  achievement standards that all children                    apply to all such definitions.
                                             Language Acquisition, U.S. Department                   are expected to meet. To achieve this                         As States have implemented Title III
                                             of Education, 400 Maryland Avenue,                      goal, Title III grants provide States and                  assessment and accountability
                                             SW., Room 10087, Potomac Center                         their subgrantees 1 with funds to                          requirements, they have faced numerous
                                             Plaza, Washington, DC 20202,                            implement language instruction                             challenges and posed a number of
                                             Attention: Comments on Title III Notice                 educational programs to help LEP                           questions to the Department about the
                                             of Proposed Interpretations.                            students acquire English and achieve at                    law’s requirements. This notice of
                                                If you prefer to send your comments                  high levels in the core academic                           proposed interpretations is intended to
                                             through the Internet, use the following                 subjects. Title III subgrantees are                        help States address those challenges by
                                             address: LEP.Partnership@ed.gov.                        required to use Title III funds to support                 answering their questions and providing
                                                You must use the term ‘‘Comments on                  (1) high-quality professional                              them with guidance on the
                                             the Title III Notice of Proposed                        development designed to improve                            implementation of Title III consistent
                                             Interpretations’’ in the subject line of                services to LEP students, and (2) high-                    with the basic tenets and goals of NCLB.
                                             your electronic message.                                quality language instruction educational                      The following is a brief summary of
                                             FOR FURTHER INFORMATION CONTACT:                        programs that are designed to increase                     the basic requirements of Title III to
                                             Richard L. Smith. Telephone: (202) 245–                 the English proficiency and academic                       which the proposed interpretations
                                             7100.                                                   achievement of LEP students. Title III                     apply. First, each State’s Title III ELP
                                                If you use a telecommunications                      does not require subgrantees to use any                    standards must be based on four
                                             device for the deaf (TDD), you may call                 particular curriculum or approach to
                                             the Federal Relay Service (FRS) at 1–                   language instruction, except that the                        2 In addition to the ELP assessment provisions in
                                             800–877–8339.                                           language instruction must be, as                           Title III, Title I of the ESEA requires an annual
                                                Individuals with disabilities may                    required in section 3113(b)(6) of the                      assessment of all LEP students that measures LEP
                                             obtain this document in an alternative                                                                             students’ speaking, listening, reading, and writing
                                                                                                     ESEA, tied to scientifically based                         skills in English.
                                             format (e.g., Braille, large print,                                                                                  3 For accountability purposes, the Department
                                             audiotape, or computer diskette) on                        1 The majority of ‘‘subgrantees’’ under Title III are   expects States to have a clear policy for how
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                                             request to the contact person listed                    local educational agencies (LEAs). However,                subgrantees define which students are considered
                                             under FOR FURTHER INFORMATION                           ‘‘subgrantees’’ may also include groups of LEAs in         to be served by Title III. States should articulate
                                             CONTACT.                                                which one or more of the LEAs is too small to be           clear guidance to subgrantees about how they are
                                                                                                     individually eligible to apply for a Title III grant;      expected to identify who is served by Title III
                                                During and after the comment period,                 these LEAs may join together to form consortia in          programs so that Title III-served LEP students are
                                             individuals may inspect all public                      order to qualify to receive the minimum amount of          identified consistently across subgrantees with
                                             comments by appointment with the                        a Title III subgrant, $10,000.                             similar program designs.



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                                                                               Federal Register / Vol. 73, No. 86 / Friday, May 2, 2008 / Notices                                            24267

                                             language domains—speaking, listening,                   programs funded under Title III if the                not in reading or writing, continue to be
                                             reading, and writing—and be aligned                     subgrantee does not meet all three of the             annually assessed only in reading and
                                             with the achievement of challenging                     AMAO targets. If a subgrantee does not                writing, but not in speaking and
                                             academic content and student                            meet the State’s AMAO targets for two                 listening, until such time as the student
                                             achievement standards (section                          consecutive years, the subgrantee is                  becomes proficient in all domains.
                                             3113(b)(2)). In addition, each State’s                  required to develop and submit an                        Based on the Secretary’s proposed
                                             ELP assessment must be administered                     improvement plan to the State and the                 interpretation, States would not be able
                                             annually to students served by Title III                State is required to provide technical                to forgo assessing a LEP student in any
                                             (section 3113(b)(3)(D)), be valid and                   assistance to the subgrantee in                       domain of the required annual ELP
                                             reliable (section 3122(a)(3)(A)(ii)), and               developing the improvement plan. If a                 assessment. LEP students who score at
                                             provide for the evaluation of LEP                       subgrantee does not meet AMAO targets                 or above proficient in a domain would
                                             students’ levels of speaking, reading,                  for four consecutive years, the                       have to continue to be assessed in all
                                             writing, listening, and comprehension                   subgrantee is required to undertake                   four domains of language as long as the
                                             in English (section 3121(d)(1)).4 Title III             corrective actions.                                   student is identified as LEP. States
                                             requires that States ensure that all                      In developing this notice, the                      would not be able to, in effect, ‘‘bank’’
                                             subgrantees comply with the                             Department examined current State                     the proficient scores of LEP students on
                                             requirement to annually assess the                      policies and practices regarding                      ELP assessments in a particular domain
                                             English proficiency of all LEP students,                implementation of Title III assessment                until such time as the student is
                                             consistent with section 1111(b)(7) of the               and accountability requirements, and                  proficient in all domains and exits the
                                             ESEA.                                                   the extent to which these may have been               LEP subgroup. This proposed
                                                Under Title III, States and their                    implemented inconsistently or                         interpretation is consistent with the
                                             subgrantees are accountable for meeting                 improperly.6 The Department also                      clear language of the ESEA, which
                                             AMAOs that relate to LEP students’                      considered issues and concerns                        requires, without exception, that LEP
                                             development and attainment of English                   identified during consultations with                  students be assessed in all domains on
                                             proficiency and academic achievement.                   State representatives and experts.                    an annual basis.
                                             Each State must set AMAO targets,
                                                                                                     Proposed Interpretations                              2. Use of Annual ELP Assessment
                                             make determinations on whether
                                                                                                                                                           Scores for AMAOs 1 and 2
                                             subgrantees are meeting those targets,                  1. Annual ELP Assessments of LEP
                                             and report annually on subgrantees’                                                                              Background: Section 3121(d)(1) of
                                                                                                     Students
                                             performance in meeting those targets.                                                                         Title III requires States to evaluate the
                                                Title III accountability provisions                     Background: Section 3113(b)(3)(D) of               progress of LEP students toward
                                             apply to the States and to subgrantees.                 the ESEA requires SEAs receiving grants               attaining English proficiency, including
                                             Title III accountability requirements do                under Title III, part A to ensure that                LEP students’ levels of comprehension,
                                             not, in general, apply to individual                    eligible entities receiving a subgrant                speaking, listening, reading, and writing
                                             schools and do not apply to individual                  annually assess the English proficiency               in English. Section 3122(a)(3)(A)(i) and
                                             LEP students.                                           of all LEP students participating in a                (ii) of Title III requires that States
                                                The first required AMAO (AMAO 1)                     Title III-funded program, consistent                  develop AMAOs that include annual
                                             focuses on the extent to which LEP                      with section 1111(b)(7) of Title I of the             increases in the number or percentage of
                                             students served by Title III in a State                 ESEA. Section 1111(b)(7) requires                     children making progress in learning
                                             and a particular LEA are making                         States, in their plans under Title I, to              English and annual increases in the
                                             progress in learning English. The second                demonstrate that LEAs in the State                    number or percentage of students
                                             AMAO (AMAO 2) focuses on the extent                     provide an annual assessment of English               attaining English proficiency by the end
                                             to which LEP students served by Title                   proficiency that measures the oral                    of each school year. States have asked
                                             III in a State and in their LEA are                     language (speaking and listening),                    the Department to provide guidance on
                                             attaining proficiency in English. Both of               reading, and writing skills of all LEP                the extent to which they may take into
                                             these AMAOs use measures derived, in                    students in the schools served by the                 account student performance in each of
                                             large part, from the results of the                     SEA.                                                  the English language domains when
                                             required annual State ELP assessment.                      Interpretation: The Secretary proposes             setting the accountability targets for
                                             The third AMAO (AMAO 3) is based on                     to interpret section 3113(b)(3)(D) to                 making progress in learning English
                                             whether the LEP subgroup in the State                   require that all LEP students be assessed             (AMAO 1) and demonstrating
                                             and in its LEA makes adequate yearly                    annually with an assessment or                        proficiency in English (AMAO 2) under
                                             progress (AYP) in reading/language arts                 assessments that measure each and                     Title III.
                                             and mathematics, as defined by the                      every one of the language domains of                     Interpretation for AMAO 1: With
                                             State under section 1111(b)(2)(B) in                    speaking, listening, reading, and                     regard to AMAO 1, the Secretary
                                             Title I of the ESEA.5                                   writing.                                              proposes to interpret Title III to allow
                                                Title III requires subgrantees to notify                Explanation: Some States have asked                States to base their student performance
                                             parents of LEP students participating in                the Department to allow them to exempt                expectations and accountability (i.e.,
                                             language instruction educational                        a LEP student from an annual ELP                      AMAO 1) targets for progress on
                                                                                                     assessment in any domain in which the                 assessment results derived from either
                                               4 The Department permits States to derive a score     student has achieved proficiency. For                 (1) separate student performance levels
                                             to reflect LEP student performance in the domain        example, States have requested that a                 or scores in each of the language
                                             of comprehension based on the four assessment                                                                 domains or (2) a single composite score
                                             domains required by both Title I (section
                                                                                                     LEP student who scores proficient in the
                                             1111(b)(7)) and Title III (section 3113(b)(3)(D))—      domains of speaking and listening, but                or performance level derived by
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                                             speaking, listening, reading, and writing—rather                                                              combining performance scores across
                                             than testing the performance of LEP students              6 Under 34 CFR 80.40(a), States are responsible     domains, so long as such a composite
                                             separately in the domain of comprehension.              for oversight and monitoring of their subgrantees’    score can be demonstrated to be a valid
                                               5 For Title III accountability purposes, AMAO 3—      performance under the subgrant as a way of
                                             or AYP—is calculated at the subgrantee/LEA and          ensuring legislative and regulatory compliance with
                                                                                                                                                           and effective measure of a student’s
                                             State levels. For Title I accountability purposes,      Title III. For more information, see http://          progress in each of the English language
                                             AYP is also calculated at the school level.             www.ed.gov/policy/fund/reg/edgarReg/edgar.html.       proficiency domains. The Secretary also


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                                             24268                             Federal Register / Vol. 73, No. 86 / Friday, May 2, 2008 / Notices

                                             proposes to interpret Title III to allow                (AMAO 2), it is the Secretary’s proposed              Title III. The AMAOs relate to students’
                                             States to determine their AMAO 1                        interpretation of Title III that a LEP                development and attainment of English
                                             targets based on progress in one or more                student must score proficient or above                proficiency while meeting challenging
                                             of the language domains, rather than                    in each and every language domain                     State academic content and student
                                             requiring student progress separately in                required under Title III in order to be               academic achievement standards
                                             each and every one of the language                      considered to have ‘‘attained                         required by section 1111(b)(1) of Title I
                                             domains, so long as the targets provide                 proficiency’’ on a State’s ELP                        of the ESEA. The AMAOs must
                                             for meaningful progress toward                          assessment. If a State’s ELP assessment               include— (1) At a minimum, annual
                                             attaining English language proficiency.                 generates a composite score, the State                increases in the number or percentage of
                                                Explanation for AMAO 1: Some States                  would have to demonstrate that an                     LEP children making progress in
                                             previously may have been advised that,                  overall proficient ELP score represents               learning English; (2) at a minimum,
                                             in setting AMAO targets for the State                   proficiency in all domains for students               annual increases in the number or
                                             and for subgrantees regarding progress                  served by Title III.                                  percentage of LEP children attaining
                                             in learning English (AMAO 1), their                        Explanation for AMAO 2: The                        English proficiency by the end of each
                                             accountability targets had to reflect LEP               Department has received questions from                school year, as determined through a
                                             student progress in each and every one                  States about whether students must                    valid and reliable assessment of English
                                             of the separate five domains for each                   attain proficiency in each language                   proficiency, consistent with section
                                             and every annual ELP assessment                         domain required under Title III to be                 1111(b)(7); and (3) making AYP for the
                                             administration. Under this proposed                     considered to have scored as proficient               LEP subgroup, as described in section
                                             interpretation, however, States would                   overall on the State ELP assessment                   1111(b)(2)(B) of Title I of the ESEA.
                                             have more discretion to set student                     required under Title III. This proposed               States must set annual targets for each
                                             performance expectations and                            interpretation is intended to clarify for             AMAO and measure the progress of
                                             accountability targets for AMAO 1, so                   States the distinction between the use of             each subgrantee in meeting the targets.
                                             long as the targets provide for                         assessment scores for AMAO 1 and                         The Department is aware that some
                                             meaningful progress toward attaining                    AMAO 2.                                               States treat AMAO 1 and AMAO 2 as
                                             English language proficiency and                           With respect to measuring progress,                mutually exclusive, such that LEP
                                             overall student performance on the                      the Department recognizes that, due to                students served under Title III are
                                             State’s ELP assessment is improving. In                 the nature of language acquisition, it is             included in either AMAO 1 or AMAO
                                             the case of States measuring progress of                possible for LEP students to make                     2, but not both. The Department is also
                                             LEP students using separate ELP                         meaningful progress in learning English               aware that some States identify a
                                             domain scores, progress measures could                  without evenly and consistently                       subgroup of Title III-served students as
                                             include improvements in some but not                    demonstrating progress in each of the                 ‘‘eligible’’ to be included in AMAOs,
                                             all domains for AMAO 1. In the case of                  language domains Title III requires for               which excludes some Title III-served
                                             States using composite ELP assessment                   evaluating LEP student performance.                   LEP students from AMAO targets,
                                             scores, progress measures could include                 Therefore, under this proposed                        calculations, and determinations.
                                             improvements in some but not all                        interpretation, States would have                        Interpretation: The Secretary proposes
                                             domains, so long as a student’s overall                 discretion in how they factor LEP                     to interpret Title III to require that all
                                             performance on the ELP assessment is                    student progress in each domain and                   LEP students served by programs under
                                             improving. The Department recognizes                    across domains into overall AMAO 1                    Title III be included in all AMAO
                                             that, given the nature of language                      targets. However, with respect to AMAO                targets, calculations, and
                                             acquisition, LEP students may make                      2, this measure is intended to mark a                 determinations. In addition, the
                                             meaningful progress in learning English                 completion point at which LEP students                Secretary proposes to interpret Title III,
                                             without necessarily making progress in                  have acquired adequate skills in each of              consistent with Title I, as requiring all
                                             each and every domain in a given                        the language domains to be considered                 LEP students attending a public school
                                             school year. For the purposes of Title III              to have attained ‘‘proficiency’’ in                   within a State or subgrantee’s
                                             accountability, this proposed                           English. Proficiency in English in each               jurisdiction—not only those LEP
                                             interpretation would allow AMAO 1                       domain is critical to succeeding                      students served by Title III programs—
                                             targets to recognize such progress.                     academically when the language of                     to be included in targets, calculations,
                                                Interpretation for AMAO 2: With                      instruction is English. This is consistent            and determinations for purposes of
                                             regard to AMAO 2, attaining English                     with the definition of LEP, in section                determining whether a State or Title III
                                             language proficiency, the Secretary                     9101(25) of the ESEA, which provides                  subgrantee meets AMAO 3.
                                             proposes to interpret Title III to allow                that a student can be LEP if the                         Explanation: This proposed
                                             States to base their student performance                student’s difficulty in reading, speaking,            interpretation is consistent with the
                                             expectations and accountability targets                 writing, or understanding English                     plain language of Title III, which makes
                                             for attainment on assessment results                    causes the student difficulty in                      no provision for excluding any LEP
                                             derived from either (1) separate student                achieving academically when the                       students from AMAO targets,
                                             performance levels or scores in each of                 language of instruction is English.                   calculations, and determinations. For
                                             the language domains or (2) a single                       Therefore, it is the Secretary’s                   AMAO 1 and AMAO 2, while the
                                             composite score or performance level                    proposed interpretation that students                 Department recognizes that States and
                                             derived by combining performance                        must reach, and AMAO 2 targets must                   subgrantees have discretion, for Title III
                                             scores across domains, provided that                    reflect, a proficient level of performance            purposes, to define ‘‘Title III-served LEP
                                             such a composite score can be                           in each and every domain of English                   students’’ or ‘‘LEP students served by
                                             demonstrated to be a valid and effective                required to be evaluated under Title III.             language education instructional
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                                             measure of a student’s proficiency in                                                                         programs under Title III’’ as all LEP
                                             each of the English language proficiency                3. Students Included in Title III                     students in an LEA or as only LEP
                                             domains.                                                Accountability                                        students specifically receiving Title III-
                                                In setting student performance                          Background: Section 3122(a)(1) of the              funded services, this proposed
                                             expectations and accountability targets                 ESEA requires States to develop                       interpretation would mean that the
                                             for attaining proficiency in English                    AMAOs for LEP students served under                   performance of all LEP students who a


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                                                                               Federal Register / Vol. 73, No. 86 / Friday, May 2, 2008 / Notices                                             24269

                                             State and subgrantee define as served                   whether States would be permitted to                  validity, this alternative method for
                                             under Title III must be included in                     exclude from AMAO 1 calculations and                  measuring progress under AMAO 1
                                             accountability determinations for both                  determinations LEP students who do                    would need to be based on research on
                                             AMAO 1 and AMAO 2.                                      not have ‘‘two data points,’’ that is,                how LEP children acquire proficiency in
                                               In the case of AMAO 3, this proposed                  students who have not participated in                 English and include reliable measures of
                                             interpretation would mean that all LEP                  two consecutive and consistent                        growth in English language proficiency.
                                             students—not only those LEP students                    administrations of the annual ELP                     A State could, for example, propose to
                                             specifically served by Title III                        assessment required under Title III.                  allow its subgrantees to use the results
                                             programs—would be required to be                           Interpretation: The Secretary proposes             of ELP placement assessments or other
                                             included in targets, calculations, and                  to interpret the requirement in section               local ELP assessments to measure
                                             determinations for purposes of                          3122(a)(3)(A)(i) of the ESEA to include               progress for LEP students served by
                                             determining whether a State or Title III                all LEP students served by Title III in               Title III who do not have two
                                             subgrantee met the AMAO.7 For Title III                 measurements of student progress in                   consecutive ELP assessment scores.
                                             subgrantees, this means that all LEP                    English (AMAO 1). This would mean                        The Secretary also would allow States
                                             students in the subgrantee’s jurisdiction               that all such students would have to be               to include criteria—in addition to
                                             would be required to be included in                     included regardless of whether they                   progress on an annual ELP assessment—
                                             AMAO 3. For States, this would mean                     have participated in at least two                     to be factored into progress
                                             that all LEP students in the LEP                        consecutive and consistent annual                     determinations for AMAO 1, even for
                                             subgroup Statewide would be required                    administrations of an ELP assessment                  students who have participated in two
                                             to be included in AMAO 3. This                          required under section 3113 of the                    consecutive administrations of the
                                             proposed interpretation is consistent                   ESEA. Under this proposed                             required annual ELP assessments. While
                                             with the provisions of Title I, which                   interpretation, all LEP students served               the Department does not believe many
                                             require that all LEP students be                        by programs under Title III would have                States follow this practice, we believe it
                                             included in accountability                              to be included in AMAO 1                              is important to permit this option for
                                             determinations, including AYP                           determinations.                                       States that wish to factor additional
                                             determinations.8                                           If a State does not have the requisite             relevant language acquisition data into
                                                                                                     two years of data for some LEP students               progress measures. However, even if a
                                             4. Exclusion of LEP Students ‘‘Without                  served by Title III in the State, the State           State uses additional criteria, at a
                                             Two Data Points’’ From AMAO 1                           would be permitted to propose to the                  minimum Title III-served LEP students
                                                Background: Section 3122(a)(3)(A)(i)                 Department an alternative method of                   who have participated in two
                                             of the ESEA requires States to develop                  calculating AMAO 1. The Department                    consecutive administrations of the
                                             AMAOs for LEP student progress in                       would require that the alternative                    required ELP assessments would be
                                             learning English. Thus, AMAO 1                          method for measuring progress under                   required to make progress on the ELP
                                             requires that States and subgrantees, at                AMAO 1 be based on research on how                    assessment to be counted towards a
                                             a minimum, show annual increases in                     LEP children acquire proficiency in                   subgrantee meeting AMAO 1.
                                             the number or percentage of LEP                         English and include reliable measures of
                                                                                                     growth in English language proficiency.               5. Attainment of English Language
                                             children making progress in learning                                                                          Proficiency and ‘‘Exiting’’ the LEP
                                             English.                                                   Under this proposed interpretation,
                                                                                                     the Secretary also would allow States to              Subgroup
                                                In paragraph 3 of this notice, the
                                             Department has set forth its proposed                   include criteria—in addition to progress                 Background: Section 3122(a)(3)(A)(ii)
                                             interpretation that all LEP students                    on an annual ELP assessment—to be                     of the ESEA requires States to develop
                                             served by Title III must be included in                 factored into progress determinations                 AMAOs for Title III-served LEP student
                                             Title III accountability determinations.                for AMAO 1, even for students who                     attainment of proficiency in English, as
                                             In this paragraph, the Department                       have participated in two consecutive                  determined through a valid and reliable
                                             addresses the more specific question of                 administrations of the required annual                assessment of English proficiency.
                                                                                                     ELP assessments.                                      AMAO 2 requires that States and
                                                7 In addition, States may choose to use the             Explanation: To be consistent with                 subgrantees, at a minimum, show
                                             flexibility granted to States by the Secretary to       NCLB’s purpose to include all students                annual increases in the number or
                                             include former LEP students in AYP calculations         in State assessment and accountability                percentage of LEP children attaining
                                             for the LEP subgroup for up to two years after such     systems, the Department no longer
                                             students have exited the LEP subgroup. See 34 CFR
                                                                                                                                                           English proficiency.
                                             200.20(f)(2)(i)(A); http://www.ed.gov/legislation/      would permit States and LEAs to                          The Department understands that
                                             FedRegister/finrule/2006-3/091306a.html and             exclude LEP students without two                      some States are using criteria, in
                                             http://www.ed.gov/policy/elsec/guid/                    consecutive annual ELP assessment                     addition to the results of a valid and
                                             lepguidance.doc.                                        scores from AMAO 1 calculations and                   reliable ELP assessment, to determine
                                                8 We note that under our regulations in 34 CFR

                                             200.20(f), some LEP students may not be included
                                                                                                     determinations. The Department                        whether subgrantees meet AMAO 2. The
                                             in AYP determinations because of their recently         recognizes, however, that there will be               Department also understands that in
                                             arrived status. Furthermore, if a student has not       students who may not have attended a                  many States, LEP students are now
                                             been enrolled in the same school or LEA for a full      school long enough to have participated               considered proficient in English for the
                                             academic year as defined by the State, such a
                                             student may be excluded from AYP calculations.
                                                                                                     in two administrations of the required                purposes of Title III accountability
                                             However, other than these exceptions permitted in       annual ELP assessment (e.g., highly                   determinations but are not considered
                                             calculating AYP under Title I, this proposed            mobile students or migrant students                   proficient for the purposes of
                                             interpretation provides that all LEP students must      new to the country or to a State or                   determining whether such students are
                                             be included in Title I accountability determinations
                                             and, therefore, in AMAO 3 determinations. For
                                                                                                     school system). Accordingly, for these                prepared to ‘‘exit’’ the LEP subgroup
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                                             more information on recently arrived LEP students       students, in the absence of data for two              under Title I or are no longer eligible for
                                             see 34 CFR 200.20(f)(2)(i)(A); http://www.ed.gov/       years from the State’s ELP assessment,                services under Title III. For example, the
                                             legislation/FedRegister/finrule/2006-3/                 the Department would require States to                Department has learned that some States
                                             091306a.html. For more information on other
                                             exceptions permitted in AYP calculations, such as
                                                                                                     propose to the Department an                          require LEP students to demonstrate
                                             full academic year enrollment, see Title I guidance     alternative method of calculating                     proficiency on content assessments
                                             at http://www.ed.gov/policy/landing.jhtml.              AMAO 1. To ensure accuracy and                        before exiting the LEP subgroup. Some


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                                             24270                             Federal Register / Vol. 73, No. 86 / Friday, May 2, 2008 / Notices

                                             States also consider LEP students’                      of AMAO 2 until they are also                         funds, so this proposed interpretation
                                             achievement in content classes when                     considered proficient by the State for                would not affect them.
                                             determining whether the students will                   the purposes of exiting the LEP                         However, under this proposed
                                             exit the LEP subgroup.                                  subgroup, i.e., students would have to                interpretation, a State would be
                                                Interpretation: It is the Secretary’s                be proficient on a State’s ELP                        permitted to apply the same minimum
                                             proposed interpretation of section                      assessment and meet any other criteria                subgroup size policies for Title III
                                             3122(a)(3)(A)(ii) of the ESEA that State                used by a State to determine that a                   accountability purposes as the State
                                             definitions of English language                         student can exit the LEP subgroup.                    applies to AYP determinations for the
                                             proficiency for the purposes of setting                 6. Use of Minimum Subgroup Sizes in                   LEP subgroup and that have been
                                             targets for AMAO 2—increasing the                       Title III Accountability                              approved by the Department in the
                                             number or percentage of LEP students                                                                          State’s Accountability Workbook for
                                             attaining English language proficiency—                    Background: Section 3122(a)(3)(A)(ii)              Title I. Policies designed to ensure that
                                             be consistent with and reflect the same                 of Title III requires that States’ AMAOs              assessment results are used to make
                                             criteria States use to determine that                   for LEP student proficiency in English                valid and reliable accountability
                                             students from the LEP subgroup no                       be determined by a valid and reliable                 determinations would have to be
                                             longer need services under Title III and                assessment of English proficiency                     applied consistently across the State for
                                             are prepared to exit the LEP subgroup                   consistent with section 1111(b)(7) of                 Title III subgrantees. Under no
                                             for Title I accountability purposes.9                   Title I of the ESEA.                                  circumstances could a State allow
                                                Explanation: This proposed                              States have asked the Department to                different subgrantees to use different
                                             interpretation would not require States                 provide guidance on whether States                    minimum subgroup sizes for Title III
                                             to change their exit criteria for LEP                   may apply minimum subgroup sizes to                   accountability purposes.
                                             students. Under this proposed                           the AMAO calculations and
                                             interpretation, the Secretary would                     determinations. It is also the                        7. All LEP Students, Adequate Yearly
                                             continue to permit States and                           Department’s understanding that                       Progress, and AMAO 3
                                             subgrantees to use criteria in addition to              numerous States are already                              Background: Section 3122(a)(3)(A)(iii)
                                             ELP assessment results to determine a                   implementing minimum subgroup size                    of the ESEA requires States to develop
                                             student’s LEP status, as long as those                  policies as part of their AMAO                        an AMAO for making adequate yearly
                                             criteria are applied consistently across                determinations.                                       progress for limited English proficient
                                                                                                        Interpretation: The Secretary proposes
                                             all subgrantees in a State. However, this                                                                     children as described in section
                                                                                                     to interpret section 3122(a)(3)(A) of the
                                             proposed interpretation requires that                                                                         1111(b)(2)(B) of Title I of the ESEA.
                                                                                                     ESEA to permit States to apply
                                             States make their AMAO 2 targets,                                                                                In paragraph 3 of this notice, the
                                                                                                     minimum subgroup sizes to AMAO
                                             calculations, and determinations                                                                              Department has set forth its proposed
                                                                                                     calculations and determinations under
                                             consistent with their determination of                                                                        interpretation that all LEP students
                                                                                                     Title III, consistent with the minimum
                                             LEP status, such that a student                                                                               served by Title III must be included in
                                                                                                     subgroup size policies that the State
                                             considered ‘‘proficient’’ in English for                                                                      Title III accountability determinations.
                                                                                                     applies to AYP determinations for the
                                             the purposes of AMAO 2 and Title III                                                                          In this paragraph, the Department
                                                                                                     LEP subgroup and that have been
                                             accountability would also necessarily be                                                                      addresses the more specific question of
                                                                                                     approved by the Department in the
                                             prepared to exit the LEP subgroup based                                                                       whether States must include all LEP
                                                                                                     State’s Accountability Workbook for
                                             on the State’s definition of LEP under                                                                        students—whether or not served by
                                                                                                     Title I.
                                             Title I and its criteria for determining                   Explanation: This proposed                         Title III—in determining whether the
                                             when a LEP student is no longer in need                 interpretation is based on the statutory              State or the subgrantee has met AMAO
                                             of a language instruction educational                   requirement that AMAO determinations                  3.
                                             program.                                                be made based on valid and reliable                      Interpretation: The Secretary proposes
                                                Likewise, any additional criteria a                  measures of student performance on                    to interpret section 3122(a)(3)(A)(iii) of
                                             State uses under Title I for determining                ELP assessments. In this context, a                   the ESEA to require that the LEP
                                             when a LEP student exits the LEP                        minimum subgroup size reflects the                    students included in AMAO 3 be the
                                             subgroup would have to be incorporated                  number of Title III-served LEP students               same LEP students referred to in section
                                             into that State’s criteria for AMAO 2.                  who need to be enrolled in a district for             1111(b)(2)(B) of Title I of the ESEA—
                                                The Secretary believes that if a State               the ELP assessment scores of those                    that is, all students counted in the LEP
                                             determines students to be eligible for                  students, taken together, to be a reliable            subgroup for AYP purposes.10 The
                                             Title III services because such students                basis for making judgments about how                  setting of targets, calculations, and
                                             have limited proficiency in English,                    that subgrantee is performing.                        determinations of AMAO 3 would not
                                             then the criteria for attaining                            The Department is not encouraging                  be limited to, or based on, only the
                                             proficiency for AMAO 2 should be                        States to adopt minimum subgroup size                 expectations for LEP students served by
                                             consistent with the criteria the State                  policies for purposes of complying with               Title III. It is the Secretary’s proposed
                                             establishes for determining that LEP                    Title III’s accountability provisions and             interpretation that for a subgrantee or
                                             students no longer need Title III                       does not believe it will be necessary for             State to meet AMAO 3, the subgrantee
                                             services. Thus, under the proposed                      most States to adopt such policies. Title             or State would have to meet the overall
                                             interpretation, students would not be                   III accountability requirements apply                 AYP achievement targets for the LEP
                                             considered proficient for the purposes                  only at the LEA/subgrantee and State                  subgroup in both reading and
                                                                                                     levels, not to individual schools, where              mathematics.
                                               9 States must define AMAO 2 criteria consistently
                                                                                                     there are often smaller numbers of LEP                   Explanation: Early interpretations of
                                             with the criteria the State uses to determine that
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                                                                                                     students or frequent fluctuations in                  AMAO 3 by Department staff may have
                                             students from the LEP subgroup are prepared to exit
                                             LEP status for Title I accountability purposes.         student populations that might make                   led some States to believe that they
                                             However, AMAO 2 calculations do not include             use of small subgroup sizes necessary.
                                             former LEP students who, while they have exited                                                                 10 This includes former LEP students if a State

                                             the LEP subgroup, may still be included in the
                                                                                                     Furthermore, LEAs with very small                     chooses to use the flexibility granted to States by
                                             subgroup for two years for the purposes of Title I      numbers of LEP students are not                       the Secretary to include former LEP students for up
                                             AYP calculations.                                       typically eligible for Title III grant                to two years in AYP calculations.



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                                                                               Federal Register / Vol. 73, No. 86 / Friday, May 2, 2008 / Notices                                            24271

                                             needed to include only those LEP                        years a student has been in the United                meet an AMAO overall, all cohorts for
                                             students receiving Title III services                   States, or the likelihood a student will              which the State has set separate targets
                                             when calculating AYP for purposes of                    reach proficiency in English in a given               would have to meet the AMAO targets.
                                             meeting AMAO 3. This may have led                       year.
                                                                                                        Interpretation: With this notice of                9. Determining AMAOs for Consortia
                                             some States to make one AYP
                                             determination for Title III purposes and                interpretation, the Secretary proposes to                Background: Section 3113(b)(5)(A) of
                                             a separate AYP determination for Title                  interpret Title III to mean that (a) States           Title III requires States to submit a plan
                                             I purposes.                                             may, but are not required to, establish               to the Secretary describing how the
                                                However, one of the key purposes of                  ‘‘cohorts’’ for AMAO targets,                         agency will hold eligible entities
                                             AMAO 3 is to tie accountability under                   calculations, and determinations; and                 accountable for meeting all AMAOs
                                             Title III to accountability under Title I               (b) States may set separate AMAO                      described in section 3122.
                                             to ensure that LEP students achieve to                  targets for separate groups or ‘‘cohorts’’               Under Title III, an SEA can make
                                             the same high standards as all students                 of LEP students served by Title III based             subgrants to eligible entities, which
                                             are expected to meet in the core content                only on the amount of time (for                       include LEAs applying individually or
                                             areas. The Department believes that it is               example, number of years) such                        as part of a group or consortium.
                                             a more accurate interpretation of the                   students have had access to language                  Because section 3114(b) of the ESEA
                                             statute that LEAs and subgrantees be                    instruction educational programs.                     does not permit States to award Title III
                                             required to use the same criteria for                      Explanation: The plain language of                 grants in amounts smaller than $10,000,
                                             determining AYP under AMAO 3 as                         Section 3122(a)(2)(A) specifically                    a consortium arrangement can be used
                                             they use to determine AYP for the LEP                   provides that, in developing AMAOs,                   by a group of LEAs that are not
                                             subgroup at the LEA level under Title I.                States must take into account the time                individually eligible for Title III funds
                                                For Title III subgrantees, this                      a student has spent in a language                     due to the small number of LEP students
                                             proposed interpretation means that all                  instruction educational program. It                   in their LEAs.
                                             LEP students in the subgrantee’s                        would, therefore, be inconsistent with                   To date, some Department officials
                                             jurisdiction would have to be included                  this statutory language to set different              have communicated to States that
                                             in AMAO 3 targets and calculations. For                 expectations for different LEP students               AMAOs must be calculated for consortia
                                             States, this proposed interpretation                    served by Title III based on their current            by compiling ELP assessment data and
                                             means that the Statewide LEP subgroup,                  language proficiency, time in the United              other applicable data from each of the
                                             representing all LEP students in the                    States, or any other criteria other than              LEAs in the consortium and
                                             State, whether or not they are                          time in a language instruction                        determining, based on those data,
                                             specifically served by Title III programs,              educational program.                                  whether the consortium has met the
                                             would have to be included in AMAO 3                        Moreover, the purpose of the                       State’s AMAOs. In the case of AMAO 3
                                             targets and calculations.                               accountability requirements in Title III              (i.e., AYP for the LEP subgroup),
                                                The Department would consider other                  is to ensure that the language                        Department staff, in some cases, have
                                             methods for calculating AMAO 3 but                      instruction educational programs in                   required States to aggregate and compile
                                             only in special circumstances regarding                 which LEP students are enrolled are                   results across LEAs and compute a new
                                             Title III consortia, in which several                   accountable for helping all LEP students              ‘‘consortium AYP.’’ The Department is
                                             otherwise separate LEAs have formed a                   acquire English. Consistent with the                  also aware that some States use different
                                             group for funding purposes. (See the                    basic principles of NCLB, under this                  approaches to calculating AMAOs for
                                             considerations outlined in paragraph 9                  proposed interpretation, subgrantee                   various consortia within their States.
                                             of this notice regarding accountability                 accountability would not be defined by                   Interpretation: The Secretary requires
                                             requirements for Title III consortia).                  the characteristics of LEP students                   States to hold consortia, like any other
                                                                                                     themselves, but by the quality of, and                eligible subgrantee, accountable for
                                             8. AMAOs and the Use of Cohorts                         student access to, language instruction               meeting AMAOs. However, the
                                                Background: Section 3122(a)(2)(A) of                 educational programs that help LEP                    Secretary proposes to interpret Title III
                                             the ESEA requires that AMAOs be                         students learn English.                               to allow States discretion on whether to
                                             developed in a manner that reflects the                    To the extent that States choose to                treat subgrantees that consist of more
                                             amount of time an individual student                    define ‘‘cohorts’’ of LEP students based              than one LEA as a single entity or as
                                             has been enrolled in a language                         on their time in language instruction                 separate entities for the purpose of
                                             instruction educational program.                        educational programs to set, calculate,               calculating each of the three AMAOs
                                                States have some discretion in how to                and determine AMAO 1 or AMAO 2, the                   required under Title III. States would,
                                             consider the amount of time a student                   State, LEA, or subgrantee would have to               for example, be permitted to combine
                                             has had access to a language instruction                meet all of the AMAO targets applied to               data across LEAs in a consortium or
                                             educational program when developing                     each cohort of LEP students.                          treat LEAs within a consortium
                                             AMAO targets. Some States have                             For example, if a State chooses to set             separately for the purposes of
                                             appropriately considered empirical                      two separate AMAO targets for progress                accountability determinations. Except as
                                             data, student demographics, and                         (AMAO 1)—one for students with less                   described in the following paragraphs, a
                                             instructional practices in setting overall              than three years of access to a language              State would have to apply a uniform
                                             AMAO targets for English language                       instruction educational program and                   approach to all the consortia in the
                                             acquisition by LEP students served                      one for students with three or more                   State.
                                             under Title III. To date, the Department                years of access to a language instruction                Explanation: The Department is
                                             also has allowed States to establish                    educational program—the State, LEAs,                  proposing this interpretation to ensure
                                             different AMAO targets for different                    and subgrantees would have to meet                    that consortia are held accountable for
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                                             ‘‘cohorts’’ of LEP students based on                    both targets (i.e., both the target for               meeting AMAOs. The Department
                                             characteristics of LEP students other                   students with less than three years of                believes this will best be accomplished
                                             than their access to English language                   language instruction and the target for               if States adopt an approach that is
                                             instruction. For example, some States                   students with more than three years of                generally consistent in implementing
                                             have established cohorts based on                       language instruction) for that entity to              AMAOs for consortia within each State.
                                             student proficiency level, the number of                meet the AMAO. For a subgrantee to                    To the degree a State does not adopt a


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                                             24272                             Federal Register / Vol. 73, No. 86 / Friday, May 2, 2008 / Notices

                                             uniform approach, however, the                          attaining English proficiency (AMAO 2),               interpretations so that we can provide
                                             Department would require a State to                     and AYP for the LEP subgroup (AMAO                    additional details and clarifications in a
                                             demonstrate that its method for                         3)—for every Title III subgrantee in the              notice of final interpretations.
                                             calculating AMAOs for consortia would                   State for every school year. Not meeting
                                                                                                                                                           Intergovernmental Review
                                             hold all consortia accountable for                      any one of the three AMAO targets in
                                             ensuring that LEP students acquire                      a given school year constitutes not                      This program is subject to Executive
                                             English language skills and make AYP.                   meeting AMAOs.                                        Order 12372 and the regulations in 34
                                                If a State intends to, among other                      The Department also proposes to                    CFR part 79. One of the objectives of the
                                             things, combine assessment or other                     interpret Title III to require that States            Executive order is to foster an
                                             data, apply a minimum group size (‘‘n’’-                annually inform their subgrantees when                intergovernmental partnership and a
                                             size) or confidence intervals, create a                 the subgrantees do not meet the State’s               strengthened federalism. The Executive
                                             ‘‘consortium AYP’’ calculation, or treat                AMAO targets—for each and every                       order relies on processes developed by
                                             individual LEAs separately for the                      AMAO target the subgrantee does not                   State and local governments for
                                             purposes of calculating AMAOs, the                      meet. In addition, States and                         coordination and review of proposed
                                             State would have to describe its                        subgrantees must communicate AMAO                     Federal financial assistance.
                                             methods and rationale in its State Title                determinations to the parents of LEP                     This document provides early
                                             III plan.                                               students served by subgrantees’ Title III             notification of our specific plans and
                                                If a State intends to change the way                 programs when subgrantees do not meet                 actions for this program.
                                             it computes AMAOs for consortia, or                     AMAOs.                                                Electronic Access to This Document
                                             wishes to propose criteria for using                       Explanation: In monitoring State
                                             different approaches based on the                       compliance with Title III, the                           You may review this document, as
                                             characteristics of consortia, the                       Department has become aware that                      well as all other Department of
                                             Secretary would require the State to                    some States have made AMAO                            Education documents published in the
                                             submit, for approval, an amendment to                   determinations and reported those                     Federal Register, in text or Adobe
                                             its Title III Consolidated State                        determinations to the Department, but                 Portable Document Format (PDF) on the
                                             application, required under section                     have neither informed subgrantees of                  Internet at the following site: http://
                                             3113 of the ESEA.                                       the AMAO determinations nor                           www.ed.gov/news/fedregister.
                                                                                                     implemented any measures to address                      To use PDF you must have Adobe
                                             10. Implementation of Corrective                                                                              Acrobat Reader, which is available free
                                                                                                     subgrantees’ failures to meet the
                                             Actions Under Title III                                                                                       at this site. If you have questions about
                                                                                                     AMAOs. The purpose of including these
                                                Background: Section 3122(b) of the                   interpretations in this notice is to be               using PDF, call the U.S. Government
                                             ESEA describes the actions that a State                 clear that States must communicate                    Printing Office (GPO), toll free, at 1–
                                             and subgrantee must take if the                         with Title III subgrantees and the                    888–293–6498; or in the Washington,
                                             subgrantee fails to meet Title III AMAOs                parents of students served by or                      DC, area at (202) 512–1530.
                                             for two or four consecutive years. If a                 identified for services by the                           Note: The official version of this document
                                             State determines that a subgrantee has                  subgrantees about student progress and                is the document published in the Federal
                                             failed to make progress toward meeting                  achievement, as well as provide parents               Register. Free Internet access to the official
                                             the AMAOs for two consecutive years,                    with information about their child’s                  edition of the Federal Register and the Code
                                             the State must require the subgrantee to                education; these requirements are                     of Federal Regulations is available on GPO
                                             develop an improvement plan. The                        central to the purposes and goals of                  Access at: http://www.gpoaccess.gov/nara/
                                             improvement plan must specifically                                                                            index.html.
                                                                                                     NCLB.
                                             address the factors that prevented the                     Thus, the Department expects States,                 Dated: April 29, 2008.
                                             subgrantee from meeting the AMAOs. If                   on an annual basis, to maintain                       Margaret Spellings,
                                             a State determines that an eligible                     evidence that (a) the State has informed
                                                                                                                                                           Secretary of Education.
                                             subgrantee has not met the AMAOs for                    a subgrantee if the subgrantee did not
                                             four consecutive years, the State must—                                                                       [FR Doc. E8–9708 Filed 5–1–08; 8:45 am]
                                                                                                     meet one or more AMAO, (b) the
                                             (1) Require the subgrantee to modify its                subgrantee has notified parents that it               BILLING CODE 4000–01–P

                                             curriculum, program, and method of                      did not meet one or more AMAO, (c) the
                                             instruction; or (2) determine whether                   State has provided required technical
                                             the subgrantee should continue to                       assistance to the subgrantee, and (d) the             DEPARTMENT OF ENERGY
                                             receive Title III funds and require the                 State has implemented required
                                             subgrantee to replace educational                                                                             Biomass Research and Development
                                                                                                     measures to address the subgrantee’s
                                             personnel relevant to the subgrantee’s                                                                        Technical Advisory Committee
                                                                                                     failure to meet the AMAOs. The
                                             failure to meet the objectives.                         Department may review this evidence as                AGENCY: Department of Energy, Office of
                                             Furthermore, section 3302 of Title III                  part of its annual desk audits and on-                Energy Efficiency and Renewable
                                             requires that parents of LEP students                   site monitoring in order to ensure that               Energy.
                                             served by a subgrantee receive notice                   Title III corrective action requirements              ACTION: Notice of Open Meeting.
                                             each year that a subgrantee does not                    are being appropriately and effectively
                                             meet AMAOs.                                             implemented.                                          SUMMARY: This notice announces an
                                                Interpretation: Through this notice,                                                                       open meeting of the Biomass Research
                                             the Secretary intends to reinforce the                  Proposed Rulemaking                                   and Development Technical Advisory
                                             proper implementation of the                              Under the Administrative Procedure                  Committee under the Biomass Research
                                             requirements of section 3122(b). First,                 Act (5 U.S.C. 553) (APA), this notice is              and Development Act of 2000. The
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                                             the Department proposes to interpret                    an interpretative rule and therefore is               Federal Advisory Committee Act (Pub.
                                             this provision to require that all States               exempt from the notice-and-comment                    L. No. 92–463, as amended) requires
                                             comply with Title III requirements and                  rulemaking requirements under the                     that agencies publish these notices in
                                             make determinations for each of the                     APA. Notwithstanding this exemption,                  the Federal Register to allow for public
                                             three AMAO targets—making progress                      the Department is soliciting public                   participation. This notice announces the
                                             in English proficiency (AMAO 1),                        comment on these proposed                             meeting of the Biomass Research and


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