82_FR_29880 82 FR 29755 - Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities Program; Early Intervention Program for Infants and Toddlers With Disabilities

82 FR 29755 - Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities Program; Early Intervention Program for Infants and Toddlers With Disabilities

DEPARTMENT OF EDUCATION

Federal Register Volume 82, Issue 125 (June 30, 2017)

Page Range29755-29761
FR Document2017-13801

The Secretary of Education (Secretary) amends the regulations implementing Parts B and C of the Individuals with Disabilities Education Act (IDEA). These conforming changes are needed to implement statutory amendments made to the IDEA by the Every Student Succeeds Act (ESSA), enacted on December 10, 2015. These regulations remove and revise IDEA definitions based on changes made to the definitions in the Elementary and Secondary Education Act of 1965 (ESEA), as amended by the ESSA, and also update several State eligibility requirements to reflect amendments to the IDEA made by the ESSA. They also update relevant cross-references in the IDEA regulations to sections of the ESEA to reflect changes made by the ESSA. These regulations also include several technical corrections to previously published IDEA Part B regulations.

Federal Register, Volume 82 Issue 125 (Friday, June 30, 2017)
[Federal Register Volume 82, Number 125 (Friday, June 30, 2017)]
[Rules and Regulations]
[Pages 29755-29761]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-13801]



[[Page 29755]]

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DEPARTMENT OF EDUCATION

34 CFR Parts 300 and 303

RIN 1820-AB74


Assistance to States for the Education of Children With 
Disabilities and Preschool Grants for Children With Disabilities 
Program; Early Intervention Program for Infants and Toddlers With 
Disabilities

AGENCY: Office of Special Education and Rehabilitative Services, 
Department of Education.

ACTION: Final regulations.

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SUMMARY: The Secretary of Education (Secretary) amends the regulations 
implementing Parts B and C of the Individuals with Disabilities 
Education Act (IDEA). These conforming changes are needed to implement 
statutory amendments made to the IDEA by the Every Student Succeeds Act 
(ESSA), enacted on December 10, 2015. These regulations remove and 
revise IDEA definitions based on changes made to the definitions in the 
Elementary and Secondary Education Act of 1965 (ESEA), as amended by 
the ESSA, and also update several State eligibility requirements to 
reflect amendments to the IDEA made by the ESSA. They also update 
relevant cross-references in the IDEA regulations to sections of the 
ESEA to reflect changes made by the ESSA. These regulations also 
include several technical corrections to previously published IDEA Part 
B regulations.

DATES: These final regulations are effective June 30, 2017.

FOR FURTHER INFORMATION CONTACT: Mary Louise Dirrigl, U.S. Department 
of Education, 550 12th Street SW., Potomac Center Plaza, Room 5156, 
Washington, DC 20202-2641. Telephone: (202) 245-7324 or by email: 
[email protected]. If you use a telecommunications device for 
the deaf (TDD) or a text telephone (TTY), call the Federal Relay 
Service (FRS), toll free, at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Purpose of This Regulatory Action: Enacted December 10, 2015, the 
ESSA \1\ reauthorized the ESEA, which provides Federal funds to improve 
elementary and secondary education in the Nation's public schools. The 
ESSA also made certain changes to sections 602 and 611 through 614 of 
the IDEA. Consequently, we are amending the IDEA regulations in parts 
300 and 303 to reflect these changes.
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    \1\ Unless otherwise indicated, citations to the ESEA refer to 
the ESEA, as amended by the ESSA.
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    Summary of the Major Provisions of This Regulatory Action: For the 
IDEA regulations in parts 300 and 303, these regulations:
     Revise the definition of the term ``charter school'' in 
Sec.  300.7 to update the statutory reference to the ESEA's amended 
definition of that term.
     Remove the definition of the term ``core academic 
subjects'' in Sec.  300.10, the definition of ``highly qualified 
special education teachers'' in Sec.  300.18, and the definition of 
``scientifically based research'' in Sec. Sec.  300.35 and 303.32 
because these terms have been removed from the ESEA.
     Revise the term ``Limited English proficient'' in Sec.  
300.27 to reflect the revisions to the term ``English learner'' in 
section 8101 of the ESEA.
     Revise Sec.  300.102(a)(3)(iv) to incorporate the 
definition of ``regular high school diploma'' in section 8101(43) of 
the ESEA.
     Move the qualification requirements for special education 
teachers from Sec.  300.18(b)(1) and (2) to Sec.  300.156(c).
     Revise Sec.  300.160(c) to reflect amendments made to the 
IDEA by the ESSA that clarify that guidelines and alternate assessments 
to measure academic progress under title I of the ESEA apply only to 
children with disabilities who are students with the most significant 
cognitive disabilities, whose achievement is measured against alternate 
academic achievement standards if a State has adopted such standards as 
permitted under section 1111(b)(1)(E) of the ESEA.
     Revise paragraph (b)(4)(xi) of Sec.  300.704 (State-level 
activities), regarding the provision of technical assistance to schools 
and local educational agencies (LEAs) implementing comprehensive 
support and improvement activities or targeted support and improvement 
activities under section 1111(d) of the ESEA on the basis of consistent 
underperformance of the disaggregated subgroup of children with 
disabilities, to include direct student services described in section 
1003A(c)(3) of the ESEA to children with disabilities.

Part 300 Regulatory Changes

Subpart A--General

Definitions Used in This Part
    We are revising the definition of ``charter school'' in Sec.  300.7 
by removing the phrase ``section 5210(1)'' and replacing it with 
``section 4310(2).'' We are revising the authority citation for Sec.  
300.7 by removing ``20 U.S.C. 7221i(1)'' and replacing it with ``20 
U.S.C. 7221i(2).''
    We are removing the definition of ``core academic subjects'' in 
Sec.  300.10 and reserving Sec.  300.10. This change is consistent with 
section 9215(ss)(1)(A) of the ESSA, which eliminated section 602(4) of 
the IDEA.
    Consistent with section 9215(ss)(1)(B) of the ESSA, we are revising 
the definition of ``excess cost'' in Sec.  300.16. Specifically, we are 
revising the cross-reference to the ESEA in Sec.  300.16(a)(3) to read 
``under part A of title III of the ESEA.''
    We are removing the definition of ``highly qualified special 
education teachers'' in Sec.  300.18, consistent with section 
9214(d)(1) of the ESSA, which eliminated section 602(10) of the IDEA, 
and we are reserving Sec.  300.18. Consequently, we are removing the 
references to Sec.  300.18 in Sec. Sec.  300.138(a)(1) and 300.146(b) 
and adding a reference to Sec.  300.156(c) in Sec.  300.138(a)(1), as 
explained below. Based on the amendments made to the IDEA by section 
9214(d)(2)(A) of the ESSA, as discussed in Subpart B, we are moving 
Sec.  300.18(b)(1) and (2), regarding qualifications for special 
education teachers, to Sec.  300.156(c). Consistent with changes made 
by section 9214(d)(2)(B) and (C) to section 612(a)(14)(D) and (E) of 
the IDEA, we are also removing references to the term ``highly 
qualified'' in Sec.  300.156(d) and (e) and replacing them with 
references to personnel ``who meet the applicable requirements 
described in paragraph (c) of this section.''
    Consistent with section 9215(ss)(1)(C) of the ESSA, which amended 
section 602(18) of the IDEA, we are revising the definition of 
``Limited English proficient'' in Sec.  300.27 to adopt the meaning 
given to the term ``English learner'' in section 8101 of the ESEA.
    Consistent with section 8002(1) of the ESEA, we are removing the 
definition of ``scientifically based research'' in Sec.  300.35 because 
this definition has been removed from the ESEA. Section 300.35 is 
reserved. However, we are retaining references to ``scientifically 
based research'' in Sec. Sec.  300.604(a)(1)(ii) and 300.704(b)(4)(xi), 
because these references were retained in sections 616(e)(1)(A)(ii) and 
611(e)(2)(C)(xi), respectively.
    We are revising the following cross-references to definitions:
     The cross-reference to the definition of ``special 
education'' in Sec.  300.105(a)(1) is changed from Sec.  300.36 to 
Sec.  300.39, and from Sec.  300.38 to Sec.  300.39 in Sec.  
300.115(b)(1).

[[Page 29756]]

     The cross-reference to the definition of ``supplementary 
aids and services'' in Sec.  300.105(a)(3) is changed from Sec.  300.38 
to Sec.  300.42, and from Sec.  300.41 to Sec.  300.42 in Sec.  
300.154(b)(1)(i).
     The cross-reference to the definition of ``transition 
services'' in Sec.  300.154(b)(1)(i) is changed from Sec.  300.42 to 
Sec.  300.43.

Subpart B--State Eligibility

Free Appropriate Public Education (FAPE) Requirements
    We are revising Sec.  300.102(a)(3)(iv) to incorporate the 
definition of ``regular high school diploma'' currently included in 
section 8101(43) of the ESEA. The term means the standard high school 
diploma awarded to the preponderance of students in the State that is 
fully aligned with State standards, or a higher diploma, except that a 
regular high school diploma shall not be aligned to the alternate 
academic achievement standards described in section 1111(b)(1)(E) of 
the ESEA. A regular high school diploma does not include a recognized 
equivalent of a diploma, such as a general equivalency diploma, 
certificate of completion, certificate of attendance, or similar lesser 
credential. We are making this conforming change to ensure that 
``regular high school diploma'' has the same meaning under the IDEA and 
the ESEA, and the definition is consistently applied under both 
programs. We are also updating the authority citation to reflect this 
change.
Additional Eligibility Requirements
    Consistent with section 9214(d)(2)(A) of the ESSA, we are revising 
Sec.  300.156(c) by removing the language indicating that each person 
employed as a public school special education teacher in the State must 
be highly qualified by the deadline established in section 1119(a)(2) 
of the ESEA. In its place at Sec.  300.156(c), we are adding language 
from the current definition of ``highly qualified'' in Sec.  
300.18(b)(1). The revisions are needed to clarify that the IDEA, as 
amended by the ESSA, retains the same requirements as in current Sec.  
300.18(b)(1) governing the qualifications of special education 
teachers. Additionally, consistent with section 9214(d)(2)(A) of the 
ESSA, we are retaining the requirements in current Sec.  300.18(b)(2), 
regarding participation in an alternate route to certification as a 
special educator. The retention of these requirements is consistent 
with amendments to section 612(a)(14)(C)(i) of the IDEA, which require 
that an alternate route to certification as a special educator meets 
the minimum requirements described in 34 CFR 200.56(a)(2)(ii), as such 
section was in effect on November 28, 2008. Because 34 CFR 
200.56(a)(2)(ii), as in effect on November 28, 2008, included the 
language in current Sec.  300.18(b)(2), we are moving the language in 
current Sec.  300.18(b)(2) to new Sec.  300.156(c)(2). Additionally, 
consistent with amendments to section 612(a)(14)(D) and (E) of the IDEA 
made by section 9214(d)(2)(B) and (C) of the ESSA, we are removing 
references to ``highly qualified'' in paragraphs (d) and (e) of Sec.  
300.156 and replacing them with references to personnel ``who meet the 
applicable requirements described in paragraph (c) of this section.''
    Consistent with section 9215(ss)(3)(A) of the ESSA, which amended 
section 612(a)(15) of the IDEA (Performance goals and indicators), we 
are making the following changes to Sec.  300.157. Consistent with 
section 9215(ss)(3)(A)(i) of the ESSA, which amended section 
612(a)(15)(A)(ii) of the IDEA, we are replacing Sec.  300.157(a)(2) in 
its entirety with the language ``Are the same as the State's long-term 
goals and measurements of interim progress for children with 
disabilities under section 1111(c)(4)(A)(i) of the ESEA.'' Consistent 
with amendments to section 612(a)(15)(B) made by section 
9215(ss)(3)(A)(ii) of the ESSA, we are also revising Sec.  300.157(b) 
by replacing the language ``including measurable annual objectives for 
progress by children with disabilities under section 
1111(b)(2)(C)(v)(II)'' with ``including measurements of interim 
progress for children with disabilities under section 
1111(c)(4)(A)(i).''
    We are making a number of amendments to Sec. Sec.  300.160(c) 
through (f) to address amendments made by section 9215(ss)(3)(B) of the 
ESSA to section 612(a)(16)(C)(ii) of the IDEA, as well as changes made 
by the ESSA to section 1111(b)(2)(D) of the ESEA, which affect current 
(d), (e), and (f) of Sec.  300.160. We are changing the title of Sec.  
300.160(c) from ``Alternate Assessments'' to ``Alternate Assessments 
Aligned with Alternate Academic Achievement Standards for Students with 
the Most Significant Cognitive Disabilities.'' We are adding the phrase 
``children with disabilities who are students with the most significant 
cognitive disabilities'' in Sec.  300.160(c)(1) with respect to State 
guidelines for participation in alternate assessments, because section 
9215(ss)(3)(B) of the ESSA clarifies that the State guidelines referred 
to in section 612(a)(16)(C)(i) of the IDEA apply only to participation 
of children with disabilities who are students with the most 
significant cognitive disabilities in alternate assessments aligned 
with alternate academic achievement standards as permitted under 
section 1111(b)(1)(E) of the ESEA, if those children cannot take 
regular assessments, even with accommodations as indicated in their 
respective individualized education programs (IEPs).
    Consistent with section 9215(ss)(3)(B) of the ESSA, which amended 
section 612(a)(16)(C)(ii) of the IDEA, we are also reorganizing Sec.  
300.160(c)(2) for greater clarity and to ensure consistency with 34 CFR 
200.6(c) of the regulations for title I, part A of the ESEA. These 
changes will clarify that if a State has adopted alternate academic 
achievement standards as permitted under section 1111(b)(1)(E) of the 
ESEA and 34 CFR 200.1(d) of the regulations for title I, part A of the 
ESEA, the State must conduct alternate assessments that measure the 
achievement of children with disabilities who are students with the 
most significant cognitive disabilities against those standards. 
Consistent with amendments made to section 612(a)(16)(C)(ii) of the 
IDEA by section 9215(ss)(3)(B) of the ESSA, we are replacing the phrase 
``the State's challenging academic content standards and challenging 
student academic achievement standards'' with ``challenging State 
academic content standards under section 1111(b)(1) of the ESEA and 
alternate academic achievement standards under section 1111(b)(1)(E) of 
the ESEA.'' Accordingly, Sec.  300.160(c)(2)(iii) is removed, because 
the statutory amendments that form the basis for the above regulatory 
changes clarify that in assessing the academic progress of children 
with disabilities under title I, part A of the ESEA, the only alternate 
assessments permitted under the IDEA and title I of the ESEA are 
alternate assessments aligned with alternate academic achievement 
standards for children with disabilities who are students with the most 
significant cognitive disabilities under section 1111(b)(2)(D) of the 
ESEA. We are amending Sec.  300.160(c)(3) by adding a reference to 
section 1111(b)(1)(E)(ii) of the ESEA and changing the title I, part A 
regulatory reference to Sec.  200.6(c)(6) to reinforce that States are 
prohibited from adopting modified academic achievement standards or any 
other alternate academic achievement standards that do not meet the 
requirements in section 1111(b)(1)(E) of the ESEA for any students with 
disabilities under section 602(3) of the IDEA.
    Consistent with section 1111(b)(2)(D)(i)(II) of the ESEA, and 34

[[Page 29757]]

CFR 200.6(d)(2), we are amending Sec.  300.160(d) (Explanation to IEP 
Teams). We are adding new Sec.  300.160(d)(1) to read, ``A State (or in 
the case of a district-wide assessment, an LEA) must provide to IEP 
teams a clear explanation of the differences between assessments based 
on grade-level academic achievement standards and those based on 
alternate academic achievement standards, including any effects of 
State and local policies on a student's education resulting from taking 
an alternate assessment aligned with alternate academic achievement 
standards, such as how participation in such assessments may delay or 
otherwise affect the student from completing the requirements for a 
regular high school diploma.'' Consistent with section 
1111(b)(2)(D)(i)(VII) of the ESEA, and 34 CFR 200.6(d)(4), we have 
added new Sec.  300.160(d)(2), which reads, ``A State (or in the case 
of a district-wide assessment, an LEA) must not preclude a student with 
the most significant cognitive disabilities who takes an alternate 
assessment aligned with alternate academic achievement standards from 
attempting to complete the requirements for a regular high school 
diploma.'' Even though this language is now reflected in 34 CFR 
200.6(d)(2) and (4), we believe this is important information for IEP 
teams to have in ensuring that students with the most significant 
cognitive disabilities taking alternate assessments aligned with 
alternate academic achievement standards receive the special education 
and related services that they need to enable them to be involved and 
make progress in the general education curriculum that is aligned with 
the State's challenging academic content standards for the grade in 
which the student is enrolled. Similarly, we believe it is important 
for parents to be fully informed of the possible implications of their 
child's participation in alternate assessments aligned with alternate 
academic achievement standards. Therefore, consistent with section 
1111(b)(2)(D)(i)(II) of the ESEA, and 34 CFR 200.6(d)(3), we have 
revised Sec.  300.160(e) (Inform parents) to read, ``A State (or in the 
case of a district-wide assessment, an LEA) must ensure that parents of 
students selected to be assessed using an alternate assessment aligned 
with alternate academic achievement standards under the State's 
guidelines referred to in paragraph (c)(1) are informed, consistent 
with Sec.  200.2(e), that their child's achievement will be measured 
based on alternate academic achievement standards, and how 
participation in such assessments may delay or otherwise affect the 
student from completing the requirements for a regular high school 
diploma.'' This revised language is also consistent with 34 CFR 
200.6(d)(3), implementing title I, part A of the ESEA.
    Consistent with section 612(a)(16)(C) of the IDEA and section 
1111(b)(1)(E)(ii) of the ESEA, we are revising Sec.  300.160(f) to make 
clear that school year 2016-2017 is the last school year for which 
States may report on the participation and performance of children with 
disabilities taking alternate assessments based on grade-level 
achievement standards. We are also correcting an inadvertent error in 
Sec.  300.160(f)(3), regarding participation in assessments, that was 
included in the August 21, 2015 regulations governing title I, part A 
of the ESEA. See Improving the Academic Achievement of the 
Disadvantaged; Assistance to States for the Education of Children With 
Disabilities. 80 FR 50773. We are replacing school years prior to 
``2015-2016'' with school years prior to ``2016-2017.'' This correction 
clarifies that school year 2015-2016, not school year 2014-2015, was 
the last school year in which States were permitted to administer 
alternate assessments based on modified academic achievement standards. 
We have also removed the words ``if any'' from Sec.  300.160(f)(4), 
because the only alternate assessments that States may conduct to 
assess academic progress under title I of the ESEA are alternate 
assessments aligned with alternate academic achievement standards for 
students with the most significant cognitive disabilities. We are also 
changing the words ``based on'' to ``aligned with'' in paragraphs 
(f)(3) and (4) of Sec.  300.160 to be consistent with the language used 
elsewhere in Sec.  300.160(c) referring to alternate assessments 
conducted under this section.

Subpart C--Local Educational Agency Eligibility

    Consistent with section 9215(ss)(4) of the ESSA, which amended 
section 613(a)(3) of the IDEA, we are revising Sec.  300.207, regarding 
personnel development, by removing the reference to ``section 2122 of 
the ESEA'' and replacing it with ``section 2102(b) of the ESEA.''

Subpart D--Evaluations, Eligibility Determinations, Individualized 
Education Programs, and Educational Placements

    Evaluations and Reevaluations
    Consistent with section 9215(ss)(5) of the ESSA, which amended 
section 614(b)(5)(A) of the IDEA, we are revising Sec.  
300.306(b)(1)(i), regarding determination of eligibility, by inserting 
the phrase ``as such section was in effect on the day before the date 
of enactment of the Every Student Succeeds Act (December 9, 2015)'' 
after ``ESEA.'' Development of IEP
    We are correcting an inadvertent error in Sec.  300.324(d)(2)(ii) 
(Children with disabilities in adult prisons) by changing the least 
restrictive environment reference from Sec.  300.112 to Sec.  300.114.

Subpart G--Authorization, Allotment, Use of Funds, and Authorization of 
Appropriations

Allotments, Grants, and Use of Funds
    Consistent with section 9215(ss)(2)(A) and (B) of the ESSA, which 
amended section 611(e)(2)(C) and (e)(3)(C)(ii)(I)(bb) of the IDEA, we 
are making the following revisions. We are revising Sec.  300.704(b)(4) 
(Other State-level activities) as follows:
     Removing ``section 6111 of the ESEA'' from paragraph (x) 
and replacing it with ``section 1201 of the ESEA.''
     Revising paragraph (xi) regarding the provision of 
technical assistance to schools and LEAs by removing ``including 
supplemental educational services as defined in section 1116(e) of the 
ESEA to children with disabilities, in schools or LEAs identified for 
improvement under section 1116 of the ESEA on the sole basis of the 
assessment results of the disaggregated subgroup of children with 
disabilities'' and replacing it with ``including direct student 
services described in section 1003A(c)(3) of the ESEA to children with 
disabilities, to schools or LEAs implementing comprehensive support and 
improvement activities or targeted support and improvement activities 
under section 1111(d) of the ESEA on the basis of consistent 
underperformance of the disaggregated subgroup of children with 
disabilities.''
     Replacing the phrase ``to meet or exceed the objectives 
established by the State under section 1111(b)(2)(G) of the ESEA'' with 
``based on the challenging academic standards described in section 
1111(b)(1) of the ESEA.''
     Finally, we are revising Sec.  300.704(c)(3)(i)(A)(2), 
regarding the LEA high cost fund, by changing the ESEA reference from 
section 9101 to section 8101.

Part 303 Regulatory Changes

Subpart A--General

Definitions Used in This Part
    Consistent with section 8002(1) of the ESEA, we are removing the 
definition of

[[Page 29758]]

``scientifically based research'' from Sec.  303.32, because this 
definition has been removed from the ESEA. Section 303.32 is reserved. 
The definition of ``scientifically based research'' was adopted in the 
2011 regulations under Part C of the IDEA to cross-reference the same 
definition under the ESEA. However, the term ``scientifically based 
research'' is still retained and applies to Sec.  303.112 of the Part C 
regulations regarding the State's responsibility to make early 
intervention services available under section 635(a)(2) of the IDEA. 
See 76 FR 60140, 60163-60164 (Sept. 28, 2011).

Executive Orders 12866, 13563, and 13771

Regulatory Impact Analysis

    Under Executive Order 12866, the Secretary must determine whether 
this regulatory action is ``significant'' and, therefore, subject to 
the requirements of the Executive order and review by the Office of 
Management and Budget (OMB). Section 3(f) of Executive Order 12866 
defines a ``significant regulatory action'' as an action likely to 
result in a rule that may--
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
Tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive order.
    This final regulatory action is not a significant regulatory action 
subject to review by OMB under section 3(f) of Executive Order 12866.
    Under Executive Order 13771, for each new regulation that the 
Department proposes for notice and comment or otherwise promulgates 
that is a significant regulatory action under Executive Order 12866, it 
must identify two deregulatory actions. For Fiscal Year 2017, any new 
incremental costs associated with a new regulation must be fully offset 
by the elimination of existing costs through deregulatory actions. The 
final regulations are not a significant regulatory action. Therefore, 
the requirements of Executive Order 13771 do not apply.
    We have also reviewed these regulations under Executive Order 
13563, which supplements and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866. To the extent permitted by law, Executive Order 
13563 requires that an agency--
    (1) Propose or adopt regulations only upon a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things and to the extent practicable--the costs of 
cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and
    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' The Office of 
Information and Regulatory Affairs of OMB has emphasized that these 
techniques may include ``identifying changing future compliance costs 
that might result from technological innovation or anticipated 
behavioral changes.''
    We are issuing these final regulations only upon a reasoned 
determination that their benefits will justify their costs. In choosing 
among alternative regulatory approaches, we selected those approaches 
that maximize net benefits. Based on the analysis that follows, the 
Department believes that these final regulations are consistent with 
the principles in Executive Order 13563.
    We also have determined that this regulatory action would not 
unduly interfere with State, local, and Tribal governments in the 
exercise of their governmental functions.

Potential Costs and Benefits

    Under Executive Order 12866, we have assessed the potential costs 
and benefits of this regulatory action and have determined that these 
regulations will not impose additional costs to States and LEAs or to 
the Federal government. These regulations do not impose additional 
costs or administrative burdens because States will be in the process 
of developing and revising their regulations implementing title I of 
the ESEA to conform with the changes made by the ESSA. We believe any 
additional costs imposed on States by these final regulations will be 
negligible, primarily because they reflect technical changes which do 
not impose additional burden. Moreover, we believe any costs will be 
significantly outweighed by the potential benefits of ensuring 
consistency among the implementation of the IDEA and ESSA requirements 
for children with disabilities.

Waiver of Rulemaking and Delayed Effective Date

    Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the 
Department generally offers interested parties the opportunity to 
comment on proposed regulations. However, the APA provides that an 
agency is not required to conduct notice- and-comment rulemaking when 
the agency, for good cause, finds that notice and public comment 
thereon are impracticable, unnecessary, or contrary to the public 
interest (5 U.S.C. 553(b)(B)). There is good cause to waive rulemaking 
here as unnecessary.
    Rulemaking is ``unnecessary'' in those situations in which ``the 
administrative rule is a routine determination, insignificant in nature 
and impact, and inconsequential to the industry and to the public.'' 
Utility Solid Waste Activities Group v. EPA, 236 F.3d 749, 755 (D.C. 
Cir. 2001), quoting U.S. Department of Justice, Attorney General's 
Manual on the Administrative Procedure Act 31 (1947) and South Carolina 
v. Block, 558 F. Supp. 1004, 1016 (D.S.C. 1983). These regulations 
implement the technical amendments made to the IDEA by the ESSA and 
include revisions made for consistency with the statute.
    The APA also generally requires that regulations be published at 
least 30 days before their effective date, unless the agency has good 
cause to implement its regulations sooner (5 U.S.C. 553(d)(3)). Again, 
because these final regulations include only conforming changes and 
technical corrections, there is good

[[Page 29759]]

cause to make them effective on the day they are published.

Paperwork Reduction Act of 1995

    These regulations do not contain any information collection 
requirements.

Intergovernmental Review

    This program is subject to the requirements of Executive Order 
12372 and the regulations in 34 CFR part 79. One of the objectives of 
the Executive order is to foster an intergovernmental partnership and a 
strengthened federalism. The Executive order relies on processes 
developed by State and local governments for coordination and review of 
proposed Federal financial assistance. This document provides early 
notification of the Department's specific plans and actions for this 
program.

Assessment of Educational Impact

    Based on our review, we have determined that these final 
regulations do not require transmission of information that any other 
agency or authority of the United States gathers or makes available.
    Accessible Format: Individuals with disabilities can obtain this 
document in an accessible format (e.g., braille, large print, 
audiotape, or compact disc) on request to the program contact person 
listed under FOR FURTHER INFORMATION CONTACT.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. Free 
internet access to the official edition of the Federal Register and the 
Code of Federal Regulations is available via the Federal Digital System 
at: www.thefederalregister.org/fdsys. At this site you can view this document, as well 
as all other documents of this Department published in the Federal 
Register, in text or Portable Document Format (PDF). To use PDF you 
must have Adobe Acrobat Reader, which is available free at the site. 
You may also access documents of the Department published in the 
Federal Register by using the article search feature at: 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

List of Subjects in 34 CFR Parts 300 and 303

    Administrative practice and procedure, Education of individuals 
with disabilities, Elementary and secondary education, Equal 
educational opportunity, Grant programs--education, Privacy, Private 
schools, Reporting and recordkeeping requirements.

    Dated: June 27, 2017.
Betsy DeVos,
Secretary of Education.
    For the reasons discussed in the preamble, the Secretary amends 
parts 300 and 303 of title 34 of the Code of Federal Regulations as 
follows:

PART 300--ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH 
DISABILITIES

0
1. The authority citation for part 300 is revised to read as follows:

    Authority:  20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474, unless 
otherwise noted.


Sec.  300.7  [Amended]

0
2. Section 300.7 is amended by removing the phrase ``section 5210(1)'' 
and adding in its place ``section 4310(2)'' and by removing the 
authority citation ``20 U.S.C. 7221i(1)'' and adding in its place ``20 
U.S.C. 7221i(2)''.


Sec.  300.10  [Removed and Reserved]

0
3. Remove and reserve Sec.  300.10.


Sec.  300.16  [Amended]

0
4. Section 300.16 is amended in paragraph (a)(3) by removing the words 
``Parts A and B'' and adding in its place ``Part A''.


Sec.  300.18  [Removed and Reserved]

0
5. Remove and reserve Sec.  300.18.


Sec.  300.27  [Amended]

0
6. Section 300.27 is amended by removing the phrase ``in section 
9101(25) of the ESEA'' and adding in its place ```English learner' in 
section 8101 of the ESEA''.


Sec.  300.35  [Removed and Reserved]

0
7. Remove and reserve Sec.  300.35.

0
8. Section 300.102 is amended by revising paragraph (a)(3)(iv) and by 
revising the authority citation to read as follows:


Sec.  300.102   Limitation--exception to FAPE for certain ages.

    (a)* * *
    (3)* * *
    (iv) As used in paragraphs (a)(3)(i) through (iii) of this section, 
the term regular high school diploma means the standard high school 
diploma awarded to the preponderance of students in the State that is 
fully aligned with State standards, or a higher diploma, except that a 
regular high school diploma shall not be aligned to the alternate 
academic achievement standards described in section 1111(b)(1)(E) of 
the ESEA. A regular high school diploma does not include a recognized 
equivalent of a diploma, such as a general equivalency diploma, 
certificate of completion, certificate of attendance, or similar lesser 
credential.
* * * * *

    Authority:  20 U.S.C. 1412(a)(1)(B)-(C) and 7801(43).


Sec.  300.105  [Amended]

0
9. Section 300.105 is amended:
0
A. In paragraph (a)(1) by removing ``Sec.  300.36'' and adding in its 
place ``Sec.  300.39''.
0
B. In paragraph (a)(3) by removing ``Sec.  300.38'' and adding in its 
place ``Sec.  300.42''.


Sec.  300.115  [Amended]

0
10. Section 300.115 is amended in paragraph (b)(1) by removing ``Sec.  
300.38'' and adding in its place ``Sec.  300.39''.


Sec.  300.138  [Amended]

0
11. Section 300.138 is amended in paragraph (a)(1) by removing the 
phrase ``highly qualified special education teacher requirements of 
Sec.  300.18'' and adding in its place ``special education teacher 
qualification requirements in Sec.  300.156(c)''.


Sec.  300.146  [Amended]

0
12. Section 300.146 is amended in paragraph (b) by removing ``Sec.  
300.18 and''.


Sec.  300.154  [Amended]

0
13. Section 300.154 is amended in paragraph (b)(1)(i) by removing 
``Sec.  300.41'' and ``Sec.  300.42'' and adding in their place ``Sec.  
300.42'' and ``Sec.  300.43'', respectively.

0
14. Section 300.156 is amended:
0
A. By revising paragraph (c).
0
B. In paragraph (d) by removing the term ``highly qualified'' and 
adding in its place ``who meet the applicable requirements described in 
paragraph (c) of this section'' after the word ``personnel''.
0
C. In paragraph (e) by removing the phrase ``be highly qualified'' and 
adding in its place ``meet the applicable requirements described in 
paragraph (c) of this section''.
    The revision reads as follows:


Sec.  300.156   Personnel qualifications.

* * * * *
    (c) Qualifications for special education teachers. (1) The 
qualifications described in paragraph (a) of this section must ensure 
that each person employed as a public school special education teacher 
in the State who teaches in an elementary school, middle school, or 
secondary school--

[[Page 29760]]

    (i) Has obtained full State certification as a special education 
teacher (including certification obtained through an alternate route to 
certification as a special educator, if such alternate route meets 
minimum requirements described in 34 CFR 200.56(a)(2)(ii) as such 
section was in effect on November 28, 2008), or passed the State 
special education teacher licensing examination, and holds a license to 
teach in the State as a special education teacher, except that when 
used with respect to any teacher teaching in a public charter school, 
the teacher must meet the certification or licensing requirements, if 
any, set forth in the State's public charter school law;
    (ii) Has not had special education certification or licensure 
requirements waived on an emergency, temporary, or provisional basis; 
and
    (iii) Holds at least a bachelor's degree.
    (2) A teacher will be considered to meet the standard in paragraph 
(c)(1)(i) of this section if that teacher is participating in an 
alternate route to special education certification program under 
which--
    (i) The teacher--
    (A) Receives high-quality professional development that is 
sustained, intensive, and classroom-focused in order to have a positive 
and lasting impact on classroom instruction, before and while teaching;
    (B) Participates in a program of intensive supervision that 
consists of structured guidance and regular ongoing support for 
teachers or a teacher mentoring program;
    (C) Assumes functions as a teacher only for a specified period of 
time not to exceed three years; and
    (D) Demonstrates satisfactory progress toward full certification as 
prescribed by the State; and
    (ii) The State ensures, through its certification and licensure 
process, that the provisions in paragraph (c)(2)(i) of this section are 
met.
* * * * *

0
15. Section 300.157 is amended:
0
A. By revising paragraph (a)(2).
0
B. In paragraph (b) by removing ``including measurable annual 
objectives for progress by children with disabilities under section 
1111(b)(2)(C)(v)(II)'' and adding in its place ``including measurements 
of interim progress for children with disabilities under section 
1111(c)(4)(A)(i)''.
    The revision reads as follows:


Sec.  300.157  Performance goals and indicators.

* * * * *
    (a) * * *
    (2) Are the same as the State's long-term goals and measurements of 
interim progress for children with disabilities under section 
1111(c)(4)(A)(i) of the ESEA.
* * * * *

0
16. Section 300.160 is amended by revising paragraphs (c) through (f) 
to read as follows:


Sec.  300.160  Participation in assessments.

* * * * *
    (c) Alternate assessments aligned with alternate academic 
achievement standards for students with the most significant cognitive 
disabilities. (1) If a State has adopted alternate academic achievement 
standards for children with disabilities who are students with the most 
significant cognitive disabilities as permitted in section 
1111(b)(1)(E) of the ESEA, the State (or, in the case of a district-
wide assessment, an LEA) must develop and implement alternate 
assessments and guidelines for the participation in alternate 
assessments of those children with disabilities who cannot participate 
in regular assessments, even with accommodations, as indicated in their 
respective IEPs, as provided in paragraph (a) of this section.
    (2) For assessing the academic progress of children with 
disabilities who are students with the most significant cognitive 
disabilities under title I of the ESEA, the alternate assessments and 
guidelines in paragraph (c)(1) of this section must--
    (i) Be aligned with the challenging State academic content 
standards under section 1111(b)(1) of the ESEA and alternate academic 
achievement standards under section 1111(b)(1)(E) of the ESEA; and
    (ii) Measure the achievement of children with disabilities who are 
students with the most significant cognitive disabilities against those 
standards.
    (3) Consistent with section 1111(b)(1)(E)(ii) of the ESEA and 34 
CFR 200.6(c)(6), a State may not adopt modified academic achievement 
standards or any other alternate academic achievement standards that do 
not meet the requirements in section 1111(b)(1)(E) of the ESEA for any 
children with disabilities under section 602(3) of the IDEA.
    (d) Explanation to IEP Teams. A State (or in the case of a 
district-wide assessment, an LEA) must--
    (1) Provide to IEP teams a clear explanation of the differences 
between assessments based on grade-level academic achievement standards 
and those based on alternate academic achievement standards, including 
any effects of State and local policies on a student's education 
resulting from taking an alternate assessment aligned with alternate 
academic achievement standards, such as how participation in such 
assessments may delay or otherwise affect the student from completing 
the requirements for a regular high school diploma; and
    (2) Not preclude a student with the most significant cognitive 
disabilities who takes an alternate assessment aligned with alternate 
academic achievement standards from attempting to complete the 
requirements for a regular high school diploma.
    (e) Inform parents. A State (or in the case of a district-wide 
assessment, an LEA) must ensure that parents of students selected to be 
assessed using an alternate assessment aligned with alternate academic 
achievement standards under the State's guidelines in paragraph (c)(1) 
of this section are informed, consistent with 34 CFR 200.2(e), that 
their child's achievement will be measured based on alternate academic 
achievement standards, and of how participation in such assessments may 
delay or otherwise affect the student from completing the requirements 
for a regular high school diploma.
    (f) Reports. An SEA (or, in the case of a district-wide assessment, 
an LEA) must make available to the public, and report to the public 
with the same frequency and in the same detail as it reports on the 
assessment of nondisabled children, the following:
    (1) The number of children with disabilities participating in 
regular assessments, and the number of those children who were provided 
accommodations (that did not result in an invalid score) in order to 
participate in those assessments.
    (2) The number of children with disabilities, if any, participating 
in alternate assessments based on grade-level academic achievement 
standards in school years prior to 2017-2018.
    (3) The number of children with disabilities, if any, participating 
in alternate assessments aligned with modified academic achievement 
standards in school years prior to 2016-2017.
    (4) The number of children with disabilities who are students with 
the most significant cognitive disabilities participating in alternate 
assessments aligned with alternate academic achievement standards.
    (5) Compared with the achievement of all children, including 
children with disabilities, the performance results of children with 
disabilities on regular

[[Page 29761]]

assessments, alternate assessments based on grade-level academic 
achievement standards (prior to 2017-2018), alternate assessments based 
on modified academic achievement standards (prior to 2016-2017), and 
alternate assessments aligned with alternate academic achievement 
standards if--
    (i) The number of children participating in those assessments is 
sufficient to yield statistically reliable information; and
    (ii) Reporting that information will not reveal personally 
identifiable information about an individual student on those 
assessments.
* * * * *


Sec.  300.207  [Amended]

0
17. Section 300.207 is amended by removing ``section 2122 of the ESEA'' 
and adding in its place ``section 2102(b) of the ESEA''.


Sec.  300.306  [Amended]

0
18. Section 300.306 is amended in paragraph (b)(1)(i) by adding the 
phrase ``as such section was in effect on the day before the date of 
enactment of the Every Student Succeeds Act (December 9, 2015)'' after 
``ESEA''.


Sec.  300.324  [Amended]

0
19. Section 300.324 is amended in paragraph (d)(2)(ii) by removing 
``300.112'' and adding in its place ``300.114''.

0
20. Section 300.704 is amended:
0
A. In paragraph (b)(4)(x) by removing ``6111 of the ESEA'' and adding 
in its place ``1201 of the ESEA''.
0
B. Revising paragraph (b)(4)(xi).
0
C. In paragraph (c)(3)(i)(A)(2) by removing ``section 9101'' and adding 
in its place ``section 8101''.
    The revision reads as follows:


Sec.  300.704  State-level activities.

* * * * *
    (b) * * *
    (4) * * *
    (xi) To provide technical assistance to schools and LEAs, and 
direct services, including direct student services described in section 
1003A(c)(3) of the ESEA, to children with disabilities, in schools or 
LEAs implementing comprehensive support and improvement activities or 
targeted support and improvement activities under section 1111(d) of 
the ESEA on the basis of consistent underperformance of the 
disaggregated subgroup of children with disabilities, including 
providing professional development to special and regular education 
teachers who teach children with disabilities, based on scientifically 
based research to improve educational instruction, in order to improve 
academic achievement based on the challenging academic standards 
described in section 1111(b)(1) of the ESEA.
* * * * *

PART 303--EARLY INTERVENTION PROGRAM FOR INFANTS AND TODDLERS WITH 
DISABILITIES

0
21. The authority citation for part 303 continues to read as follows:

    Authority:  20 U.S.C. 1431 through 1444, unless otherwise noted.


Sec.  303.32  [Removed and Reserved]

0
22. Remove and reserve Sec.  303.32.

[FR Doc. 2017-13801 Filed 6-29-17; 8:45 am]
 BILLING CODE 4000-01-P



                                                                     Federal Register / Vol. 82, No. 125 / Friday, June 30, 2017 / Rules and Regulations                                          29755

                                                DEPARTMENT OF EDUCATION                                 we are amending the IDEA regulations                   § 300.7 by removing ‘‘20 U.S.C.
                                                                                                        in parts 300 and 303 to reflect these                  7221i(1)’’ and replacing it with ‘‘20
                                                34 CFR Parts 300 and 303                                changes.                                               U.S.C. 7221i(2).’’
                                                                                                           Summary of the Major Provisions of                     We are removing the definition of
                                                RIN 1820–AB74
                                                                                                        This Regulatory Action: For the IDEA                   ‘‘core academic subjects’’ in § 300.10
                                                Assistance to States for the Education                  regulations in parts 300 and 303, these                and reserving § 300.10. This change is
                                                of Children With Disabilities and                       regulations:                                           consistent with section 9215(ss)(1)(A) of
                                                Preschool Grants for Children With                         • Revise the definition of the term                 the ESSA, which eliminated section
                                                Disabilities Program; Early                             ‘‘charter school’’ in § 300.7 to update the            602(4) of the IDEA.
                                                Intervention Program for Infants and                    statutory reference to the ESEA’s                         Consistent with section 9215(ss)(1)(B)
                                                Toddlers With Disabilities                              amended definition of that term.                       of the ESSA, we are revising the
                                                                                                           • Remove the definition of the term                 definition of ‘‘excess cost’’ in § 300.16.
                                                AGENCY:  Office of Special Education and                ‘‘core academic subjects’’ in § 300.10,                Specifically, we are revising the cross-
                                                Rehabilitative Services, Department of                  the definition of ‘‘highly qualified                   reference to the ESEA in § 300.16(a)(3)
                                                Education.                                              special education teachers’’ in § 300.18,              to read ‘‘under part A of title III of the
                                                ACTION: Final regulations.                              and the definition of ‘‘scientifically                 ESEA.’’
                                                                                                        based research’’ in §§ 300.35 and 303.32                  We are removing the definition of
                                                SUMMARY:   The Secretary of Education                   because these terms have been removed                  ‘‘highly qualified special education
                                                (Secretary) amends the regulations                      from the ESEA.                                         teachers’’ in § 300.18, consistent with
                                                implementing Parts B and C of the                          • Revise the term ‘‘Limited English                 section 9214(d)(1) of the ESSA, which
                                                Individuals with Disabilities Education                 proficient’’ in § 300.27 to reflect the                eliminated section 602(10) of the IDEA,
                                                Act (IDEA). These conforming changes                    revisions to the term ‘‘English learner’’              and we are reserving § 300.18.
                                                are needed to implement statutory                       in section 8101 of the ESEA.                           Consequently, we are removing the
                                                amendments made to the IDEA by the                         • Revise § 300.102(a)(3)(iv) to
                                                                                                                                                               references to § 300.18 in §§ 300.138(a)(1)
                                                Every Student Succeeds Act (ESSA),                      incorporate the definition of ‘‘regular
                                                                                                                                                               and 300.146(b) and adding a reference
                                                enacted on December 10, 2015. These                     high school diploma’’ in section
                                                                                                                                                               to § 300.156(c) in § 300.138(a)(1), as
                                                regulations remove and revise IDEA                      8101(43) of the ESEA.
                                                                                                           • Move the qualification                            explained below. Based on the
                                                definitions based on changes made to                                                                           amendments made to the IDEA by
                                                the definitions in the Elementary and                   requirements for special education
                                                                                                        teachers from § 300.18(b)(1) and (2) to                section 9214(d)(2)(A) of the ESSA, as
                                                Secondary Education Act of 1965                                                                                discussed in Subpart B, we are moving
                                                (ESEA), as amended by the ESSA, and                     § 300.156(c).
                                                                                                           • Revise § 300.160(c) to reflect                    § 300.18(b)(1) and (2), regarding
                                                also update several State eligibility                                                                          qualifications for special education
                                                requirements to reflect amendments to                   amendments made to the IDEA by the
                                                                                                        ESSA that clarify that guidelines and                  teachers, to § 300.156(c). Consistent
                                                the IDEA made by the ESSA. They also                                                                           with changes made by section
                                                update relevant cross-references in the                 alternate assessments to measure
                                                                                                        academic progress under title I of the                 9214(d)(2)(B) and (C) to section
                                                IDEA regulations to sections of the                                                                            612(a)(14)(D) and (E) of the IDEA, we
                                                ESEA to reflect changes made by the                     ESEA apply only to children with
                                                                                                        disabilities who are students with the                 are also removing references to the term
                                                ESSA. These regulations also include                                                                           ‘‘highly qualified’’ in § 300.156(d) and
                                                several technical corrections to                        most significant cognitive disabilities,
                                                                                                        whose achievement is measured against                  (e) and replacing them with references
                                                previously published IDEA Part B                                                                               to personnel ‘‘who meet the applicable
                                                regulations.                                            alternate academic achievement
                                                                                                        standards if a State has adopted such                  requirements described in paragraph (c)
                                                DATES:  These final regulations are                     standards as permitted under section                   of this section.’’
                                                effective June 30, 2017.                                1111(b)(1)(E) of the ESEA.                                Consistent with section 9215(ss)(1)(C)
                                                FOR FURTHER INFORMATION CONTACT:                           • Revise paragraph (b)(4)(xi) of                    of the ESSA, which amended section
                                                Mary Louise Dirrigl, U.S. Department of                 § 300.704 (State-level activities),                    602(18) of the IDEA, we are revising the
                                                Education, 550 12th Street SW.,                         regarding the provision of technical                   definition of ‘‘Limited English
                                                Potomac Center Plaza, Room 5156,                        assistance to schools and local                        proficient’’ in § 300.27 to adopt the
                                                Washington, DC 20202–2641.                              educational agencies (LEAs)                            meaning given to the term ‘‘English
                                                Telephone: (202) 245–7324 or by email:                  implementing comprehensive support                     learner’’ in section 8101 of the ESEA.
                                                Mary.Louise.Dirrigl@ed.gov. If you use a                and improvement activities or targeted                    Consistent with section 8002(1) of the
                                                telecommunications device for the deaf                  support and improvement activities                     ESEA, we are removing the definition of
                                                (TDD) or a text telephone (TTY), call the               under section 1111(d) of the ESEA on                   ‘‘scientifically based research’’ in
                                                Federal Relay Service (FRS), toll free, at              the basis of consistent                                § 300.35 because this definition has
                                                1–800–877–8339.                                         underperformance of the disaggregated                  been removed from the ESEA. Section
                                                SUPPLEMENTARY INFORMATION:                              subgroup of children with disabilities,                300.35 is reserved. However, we are
                                                                                                        to include direct student services                     retaining references to ‘‘scientifically
                                                Executive Summary                                       described in section 1003A(c)(3) of the                based research’’ in §§ 300.604(a)(1)(ii)
                                                  Purpose of This Regulatory Action:                    ESEA to children with disabilities.                    and 300.704(b)(4)(xi), because these
                                                Enacted December 10, 2015, the ESSA 1                                                                          references were retained in sections
                                                                                                        Part 300 Regulatory Changes                            616(e)(1)(A)(ii) and 611(e)(2)(C)(xi),
                                                reauthorized the ESEA, which provides
                                                Federal funds to improve elementary                     Subpart A—General                                      respectively.
mstockstill on DSK30JT082PROD with RULES




                                                and secondary education in the Nation’s                                                                           We are revising the following cross-
                                                                                                        Definitions Used in This Part                          references to definitions:
                                                public schools. The ESSA also made
                                                certain changes to sections 602 and 611                    We are revising the definition of                      • The cross-reference to the definition
                                                through 614 of the IDEA. Consequently,                  ‘‘charter school’’ in § 300.7 by removing              of ‘‘special education’’ in § 300.105(a)(1)
                                                                                                        the phrase ‘‘section 5210(1)’’ and                     is changed from § 300.36 to § 300.39,
                                                  1 Unless otherwise indicated, citations to the        replacing it with ‘‘section 4310(2).’’ We              and from § 300.38 to § 300.39 in
                                                ESEA refer to the ESEA, as amended by the ESSA.         are revising the authority citation for                § 300.115(b)(1).


                                           VerDate Sep<11>2014   17:26 Jun 29, 2017   Jkt 241001   PO 00000   Frm 00057   Fmt 4700   Sfmt 4700   E:\FR\FM\30JNR1.SGM   30JNR1


                                                29756                Federal Register / Vol. 82, No. 125 / Friday, June 30, 2017 / Rules and Regulations

                                                  • The cross-reference to the definition               requirements described in 34 CFR                       disabilities in alternate assessments
                                                of ‘‘supplementary aids and services’’ in               200.56(a)(2)(ii), as such section was in               aligned with alternate academic
                                                § 300.105(a)(3) is changed from § 300.38                effect on November 28, 2008. Because                   achievement standards as permitted
                                                to § 300.42, and from § 300.41 to                       34 CFR 200.56(a)(2)(ii), as in effect on               under section 1111(b)(1)(E) of the ESEA,
                                                § 300.42 in § 300.154(b)(1)(i).                         November 28, 2008, included the                        if those children cannot take regular
                                                  • The cross-reference to the definition               language in current § 300.18(b)(2), we                 assessments, even with
                                                of ‘‘transition services’’ in                           are moving the language in current                     accommodations as indicated in their
                                                § 300.154(b)(1)(i) is changed from                      § 300.18(b)(2) to new § 300.156(c)(2).                 respective individualized education
                                                § 300.42 to § 300.43.                                   Additionally, consistent with                          programs (IEPs).
                                                                                                        amendments to section 612(a)(14)(D)                       Consistent with section 9215(ss)(3)(B)
                                                Subpart B—State Eligibility                             and (E) of the IDEA made by section                    of the ESSA, which amended section
                                                Free Appropriate Public Education                       9214(d)(2)(B) and (C) of the ESSA, we                  612(a)(16)(C)(ii) of the IDEA, we are also
                                                (FAPE) Requirements                                     are removing references to ‘‘highly                    reorganizing § 300.160(c)(2) for greater
                                                                                                        qualified’’ in paragraphs (d) and (e) of               clarity and to ensure consistency with
                                                   We are revising § 300.102(a)(3)(iv) to
                                                                                                        § 300.156 and replacing them with                      34 CFR 200.6(c) of the regulations for
                                                incorporate the definition of ‘‘regular                                                                        title I, part A of the ESEA. These
                                                                                                        references to personnel ‘‘who meet the
                                                high school diploma’’ currently                                                                                changes will clarify that if a State has
                                                                                                        applicable requirements described in
                                                included in section 8101(43) of the                                                                            adopted alternate academic
                                                                                                        paragraph (c) of this section.’’
                                                ESEA. The term means the standard                          Consistent with section 9215(ss)(3)(A)              achievement standards as permitted
                                                high school diploma awarded to the                      of the ESSA, which amended section                     under section 1111(b)(1)(E) of the ESEA
                                                preponderance of students in the State                  612(a)(15) of the IDEA (Performance                    and 34 CFR 200.1(d) of the regulations
                                                that is fully aligned with State                        goals and indicators), we are making the               for title I, part A of the ESEA, the State
                                                standards, or a higher diploma, except                  following changes to § 300.157.                        must conduct alternate assessments that
                                                that a regular high school diploma shall                Consistent with section 9215(ss)(3)(A)(i)              measure the achievement of children
                                                not be aligned to the alternate academic                of the ESSA, which amended section                     with disabilities who are students with
                                                achievement standards described in                      612(a)(15)(A)(ii) of the IDEA, we are                  the most significant cognitive
                                                section 1111(b)(1)(E) of the ESEA. A                    replacing § 300.157(a)(2) in its entirety              disabilities against those standards.
                                                regular high school diploma does not                    with the language ‘‘Are the same as the                Consistent with amendments made to
                                                include a recognized equivalent of a                    State’s long-term goals and                            section 612(a)(16)(C)(ii) of the IDEA by
                                                diploma, such as a general equivalency                  measurements of interim progress for                   section 9215(ss)(3)(B) of the ESSA, we
                                                diploma, certificate of completion,                     children with disabilities under section               are replacing the phrase ‘‘the State’s
                                                certificate of attendance, or similar                   1111(c)(4)(A)(i) of the ESEA.’’                        challenging academic content standards
                                                lesser credential. We are making this                   Consistent with amendments to section                  and challenging student academic
                                                conforming change to ensure that                        612(a)(15)(B) made by section                          achievement standards’’ with
                                                ‘‘regular high school diploma’’ has the                 9215(ss)(3)(A)(ii) of the ESSA, we are                 ‘‘challenging State academic content
                                                same meaning under the IDEA and the                     also revising § 300.157(b) by replacing                standards under section 1111(b)(1) of
                                                ESEA, and the definition is consistently                the language ‘‘including measurable                    the ESEA and alternate academic
                                                applied under both programs. We are                     annual objectives for progress by                      achievement standards under section
                                                also updating the authority citation to                 children with disabilities under section               1111(b)(1)(E) of the ESEA.’’
                                                reflect this change.                                    1111(b)(2)(C)(v)(II)’’ with ‘‘including                Accordingly, § 300.160(c)(2)(iii) is
                                                Additional Eligibility Requirements                     measurements of interim progress for                   removed, because the statutory
                                                                                                        children with disabilities under section               amendments that form the basis for the
                                                   Consistent with section 9214(d)(2)(A)                1111(c)(4)(A)(i).’’                                    above regulatory changes clarify that in
                                                of the ESSA, we are revising                               We are making a number of                           assessing the academic progress of
                                                § 300.156(c) by removing the language                   amendments to §§ 300.160(c) through (f)                children with disabilities under title I,
                                                indicating that each person employed as                 to address amendments made by section                  part A of the ESEA, the only alternate
                                                a public school special education                       9215(ss)(3)(B) of the ESSA to section                  assessments permitted under the IDEA
                                                teacher in the State must be highly                     612(a)(16)(C)(ii) of the IDEA, as well as              and title I of the ESEA are alternate
                                                qualified by the deadline established in                changes made by the ESSA to section                    assessments aligned with alternate
                                                section 1119(a)(2) of the ESEA. In its                  1111(b)(2)(D) of the ESEA, which affect                academic achievement standards for
                                                place at § 300.156(c), we are adding                    current (d), (e), and (f) of § 300.160. We             children with disabilities who are
                                                language from the current definition of                 are changing the title of § 300.160(c)                 students with the most significant
                                                ‘‘highly qualified’’ in § 300.18(b)(1). The             from ‘‘Alternate Assessments’’ to                      cognitive disabilities under section
                                                revisions are needed to clarify that the                ‘‘Alternate Assessments Aligned with                   1111(b)(2)(D) of the ESEA. We are
                                                IDEA, as amended by the ESSA, retains                   Alternate Academic Achievement                         amending § 300.160(c)(3) by adding a
                                                the same requirements as in current                     Standards for Students with the Most                   reference to section 1111(b)(1)(E)(ii) of
                                                § 300.18(b)(1) governing the                            Significant Cognitive Disabilities.’’ We               the ESEA and changing the title I, part
                                                qualifications of special education                     are adding the phrase ‘‘children with                  A regulatory reference to § 200.6(c)(6) to
                                                teachers. Additionally, consistent with                 disabilities who are students with the                 reinforce that States are prohibited from
                                                section 9214(d)(2)(A) of the ESSA, we                   most significant cognitive disabilities’’              adopting modified academic
                                                are retaining the requirements in current               in § 300.160(c)(1) with respect to State               achievement standards or any other
                                                § 300.18(b)(2), regarding participation in              guidelines for participation in alternate              alternate academic achievement
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                                                an alternate route to certification as a                assessments, because section                           standards that do not meet the
                                                special educator. The retention of these                9215(ss)(3)(B) of the ESSA clarifies that              requirements in section 1111(b)(1)(E) of
                                                requirements is consistent with                         the State guidelines referred to in                    the ESEA for any students with
                                                amendments to section 612(a)(14)(C)(i)                  section 612(a)(16)(C)(i) of the IDEA                   disabilities under section 602(3) of the
                                                of the IDEA, which require that an                      apply only to participation of children                IDEA.
                                                alternate route to certification as a                   with disabilities who are students with                   Consistent with section
                                                special educator meets the minimum                      the most significant cognitive                         1111(b)(2)(D)(i)(II) of the ESEA, and 34


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                                                                     Federal Register / Vol. 82, No. 125 / Friday, June 30, 2017 / Rules and Regulations                                         29757

                                                CFR 200.6(d)(2), we are amending                        achievement standards, and how                         614(b)(5)(A) of the IDEA, we are revising
                                                § 300.160(d) (Explanation to IEP Teams).                participation in such assessments may                  § 300.306(b)(1)(i), regarding
                                                We are adding new § 300.160(d)(1) to                    delay or otherwise affect the student                  determination of eligibility, by inserting
                                                read, ‘‘A State (or in the case of a                    from completing the requirements for a                 the phrase ‘‘as such section was in effect
                                                district-wide assessment, an LEA) must                  regular high school diploma.’’ This                    on the day before the date of enactment
                                                provide to IEP teams a clear explanation                revised language is also consistent with               of the Every Student Succeeds Act
                                                of the differences between assessments                  34 CFR 200.6(d)(3), implementing title I,              (December 9, 2015)’’ after ‘‘ESEA.’’
                                                based on grade-level academic                           part A of the ESEA.                                    Development of IEP
                                                achievement standards and those based                      Consistent with section 612(a)(16)(C)                 We are correcting an inadvertent error
                                                on alternate academic achievement                       of the IDEA and section 1111(b)(1)(E)(ii)              in § 300.324(d)(2)(ii) (Children with
                                                standards, including any effects of State               of the ESEA, we are revising § 300.160(f)              disabilities in adult prisons) by
                                                and local policies on a student’s                       to make clear that school year 2016–                   changing the least restrictive
                                                education resulting from taking an                      2017 is the last school year for which                 environment reference from § 300.112 to
                                                alternate assessment aligned with                       States may report on the participation                 § 300.114.
                                                alternate academic achievement                          and performance of children with
                                                                                                                                                               Subpart G—Authorization, Allotment,
                                                standards, such as how participation in                 disabilities taking alternate assessments
                                                                                                                                                               Use of Funds, and Authorization of
                                                such assessments may delay or                           based on grade-level achievement
                                                                                                                                                               Appropriations
                                                otherwise affect the student from                       standards. We are also correcting an
                                                                                                        inadvertent error in § 300.160(f)(3),                  Allotments, Grants, and Use of Funds
                                                completing the requirements for a
                                                                                                        regarding participation in assessments,                   Consistent with section 9215(ss)(2)(A)
                                                regular high school diploma.’’
                                                                                                        that was included in the August 21,                    and (B) of the ESSA, which amended
                                                Consistent with section
                                                                                                        2015 regulations governing title I, part A             section 611(e)(2)(C) and
                                                1111(b)(2)(D)(i)(VII) of the ESEA, and 34
                                                                                                        of the ESEA. See Improving the                         (e)(3)(C)(ii)(I)(bb) of the IDEA, we are
                                                CFR 200.6(d)(4), we have added new
                                                                                                        Academic Achievement of the                            making the following revisions. We are
                                                § 300.160(d)(2), which reads, ‘‘A State
                                                                                                        Disadvantaged; Assistance to States for                revising § 300.704(b)(4) (Other State-
                                                (or in the case of a district-wide
                                                                                                        the Education of Children With                         level activities) as follows:
                                                assessment, an LEA) must not preclude
                                                a student with the most significant
                                                                                                        Disabilities. 80 FR 50773. We are                         • Removing ‘‘section 6111 of the
                                                                                                        replacing school years prior to ‘‘2015–                ESEA’’ from paragraph (x) and replacing
                                                cognitive disabilities who takes an
                                                                                                        2016’’ with school years prior to ‘‘2016–              it with ‘‘section 1201 of the ESEA.’’
                                                alternate assessment aligned with
                                                alternate academic achievement
                                                                                                        2017.’’ This correction clarifies that                    • Revising paragraph (xi) regarding
                                                                                                        school year 2015–2016, not school year                 the provision of technical assistance to
                                                standards from attempting to complete
                                                                                                        2014–2015, was the last school year in                 schools and LEAs by removing
                                                the requirements for a regular high
                                                                                                        which States were permitted to                         ‘‘including supplemental educational
                                                school diploma.’’ Even though this
                                                                                                        administer alternate assessments based                 services as defined in section 1116(e) of
                                                language is now reflected in 34 CFR
                                                                                                        on modified academic achievement                       the ESEA to children with disabilities,
                                                200.6(d)(2) and (4), we believe this is
                                                                                                        standards. We have also removed the                    in schools or LEAs identified for
                                                important information for IEP teams to
                                                                                                        words ‘‘if any’’ from § 300.160(f)(4),                 improvement under section 1116 of the
                                                have in ensuring that students with the
                                                                                                        because the only alternate assessments                 ESEA on the sole basis of the
                                                most significant cognitive disabilities
                                                                                                        that States may conduct to assess                      assessment results of the disaggregated
                                                taking alternate assessments aligned
                                                                                                        academic progress under title I of the                 subgroup of children with disabilities’’
                                                with alternate academic achievement
                                                                                                        ESEA are alternate assessments aligned                 and replacing it with ‘‘including direct
                                                standards receive the special education
                                                                                                        with alternate academic achievement                    student services described in section
                                                and related services that they need to
                                                                                                        standards for students with the most                   1003A(c)(3) of the ESEA to children
                                                enable them to be involved and make
                                                                                                        significant cognitive disabilities. We are             with disabilities, to schools or LEAs
                                                progress in the general education
                                                                                                        also changing the words ‘‘based on’’ to                implementing comprehensive support
                                                curriculum that is aligned with the
                                                                                                        ‘‘aligned with’’ in paragraphs (f)(3) and              and improvement activities or targeted
                                                State’s challenging academic content                                                                           support and improvement activities
                                                                                                        (4) of § 300.160 to be consistent with the
                                                standards for the grade in which the                                                                           under section 1111(d) of the ESEA on
                                                                                                        language used elsewhere in § 300.160(c)
                                                student is enrolled. Similarly, we                                                                             the basis of consistent
                                                                                                        referring to alternate assessments
                                                believe it is important for parents to be                                                                      underperformance of the disaggregated
                                                                                                        conducted under this section.
                                                fully informed of the possible                                                                                 subgroup of children with disabilities.’’
                                                implications of their child’s                           Subpart C—Local Educational Agency                        • Replacing the phrase ‘‘to meet or
                                                participation in alternate assessments                  Eligibility                                            exceed the objectives established by the
                                                aligned with alternate academic                           Consistent with section 9215(ss)(4) of               State under section 1111(b)(2)(G) of the
                                                achievement standards. Therefore,                       the ESSA, which amended section                        ESEA’’ with ‘‘based on the challenging
                                                consistent with section                                 613(a)(3) of the IDEA, we are revising                 academic standards described in section
                                                1111(b)(2)(D)(i)(II) of the ESEA, and 34                § 300.207, regarding personnel                         1111(b)(1) of the ESEA.’’
                                                CFR 200.6(d)(3), we have revised                        development, by removing the reference                    • Finally, we are revising
                                                § 300.160(e) (Inform parents) to read, ‘‘A              to ‘‘section 2122 of the ESEA’’ and                    § 300.704(c)(3)(i)(A)(2), regarding the
                                                State (or in the case of a district-wide                replacing it with ‘‘section 2102(b) of the             LEA high cost fund, by changing the
                                                assessment, an LEA) must ensure that                    ESEA.’’                                                ESEA reference from section 9101 to
                                                parents of students selected to be                                                                             section 8101.
                                                                                                        Subpart D—Evaluations, Eligibility
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                                                assessed using an alternate assessment
                                                aligned with alternate academic                         Determinations, Individualized                         Part 303 Regulatory Changes
                                                achievement standards under the State’s                 Education Programs, and Educational                    Subpart A—General
                                                guidelines referred to in paragraph (c)(1)              Placements
                                                are informed, consistent with § 200.2(e),                 Evaluations and Reevaluations                        Definitions Used in This Part
                                                that their child’s achievement will be                    Consistent with section 9215(ss)(5) of                 Consistent with section 8002(1) of the
                                                measured based on alternate academic                    the ESSA, which amended section                        ESEA, we are removing the definition of


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                                                29758                Federal Register / Vol. 82, No. 125 / Friday, June 30, 2017 / Rules and Regulations

                                                ‘‘scientifically based research’’ from                  the requirements of Executive Order                    Potential Costs and Benefits
                                                § 303.32, because this definition has                   13771 do not apply.
                                                been removed from the ESEA. Section                        We have also reviewed these                            Under Executive Order 12866, we
                                                303.32 is reserved. The definition of                   regulations under Executive Order                      have assessed the potential costs and
                                                ‘‘scientifically based research’’ was                   13563, which supplements and                           benefits of this regulatory action and
                                                adopted in the 2011 regulations under                   explicitly reaffirms the principles,                   have determined that these regulations
                                                Part C of the IDEA to cross-reference the               structures, and definitions governing                  will not impose additional costs to
                                                same definition under the ESEA.                         regulatory review established in                       States and LEAs or to the Federal
                                                However, the term ‘‘scientifically based                Executive Order 12866. To the extent                   government. These regulations do not
                                                research’’ is still retained and applies to             permitted by law, Executive Order                      impose additional costs or
                                                § 303.112 of the Part C regulations                     13563 requires that an agency—                         administrative burdens because States
                                                regarding the State’s responsibility to                    (1) Propose or adopt regulations only               will be in the process of developing and
                                                make early intervention services                        upon a reasoned determination that                     revising their regulations implementing
                                                available under section 635(a)(2) of the                their benefits justify their costs                     title I of the ESEA to conform with the
                                                IDEA. See 76 FR 60140, 60163–60164                      (recognizing that some benefits and                    changes made by the ESSA. We believe
                                                (Sept. 28, 2011).                                       costs are difficult to quantify);                      any additional costs imposed on States
                                                                                                                                                               by these final regulations will be
                                                Executive Orders 12866, 13563, and                         (2) Tailor its regulations to impose the
                                                                                                                                                               negligible, primarily because they
                                                13771                                                   least burden on society, consistent with
                                                                                                                                                               reflect technical changes which do not
                                                                                                        obtaining regulatory objectives and
                                                Regulatory Impact Analysis                                                                                     impose additional burden. Moreover,
                                                                                                        taking into account—among other things
                                                                                                                                                               we believe any costs will be
                                                   Under Executive Order 12866, the                     and to the extent practicable—the costs
                                                                                                                                                               significantly outweighed by the
                                                Secretary must determine whether this                   of cumulative regulations;
                                                                                                                                                               potential benefits of ensuring
                                                regulatory action is ‘‘significant’’ and,                  (3) In choosing among alternative
                                                                                                                                                               consistency among the implementation
                                                therefore, subject to the requirements of               regulatory approaches, select those
                                                                                                                                                               of the IDEA and ESSA requirements for
                                                the Executive order and review by the                   approaches that maximize net benefits
                                                                                                                                                               children with disabilities.
                                                Office of Management and Budget                         (including potential economic,
                                                (OMB). Section 3(f) of Executive Order                  environmental, public health and safety,               Waiver of Rulemaking and Delayed
                                                12866 defines a ‘‘significant regulatory                and other advantages; distributive                     Effective Date
                                                action’’ as an action likely to result in               impacts; and equity);
                                                                                                           (4) To the extent feasible, specify                    Under the Administrative Procedure
                                                a rule that may—                                                                                               Act (APA) (5 U.S.C. 553), the
                                                                                                        performance objectives, rather than the
                                                   (1) Have an annual effect on the                                                                            Department generally offers interested
                                                                                                        behavior or manner of compliance a
                                                economy of $100 million or more or                                                                             parties the opportunity to comment on
                                                                                                        regulated entity must adopt; and
                                                adversely affect a sector of the economy,                                                                      proposed regulations. However, the
                                                                                                           (5) Identify and assess available
                                                productivity, competition, jobs, the                                                                           APA provides that an agency is not
                                                                                                        alternatives to direct regulation,
                                                environment, public health or safety, or                                                                       required to conduct notice- and-
                                                                                                        including economic incentives—such as
                                                State, local, or Tribal governments or                                                                         comment rulemaking when the agency,
                                                                                                        user fees or marketable permits—to
                                                communities in a material way (also                                                                            for good cause, finds that notice and
                                                                                                        encourage the desired behavior, or
                                                referred to as an ‘‘economically                                                                               public comment thereon are
                                                                                                        provide information that enables the
                                                significant’’ rule);                                                                                           impracticable, unnecessary, or contrary
                                                                                                        public to make choices.
                                                   (2) Create serious inconsistency or                     Executive Order 13563 also requires                 to the public interest (5 U.S.C.
                                                otherwise interfere with an action taken                an agency ‘‘to use the best available                  553(b)(B)). There is good cause to waive
                                                or planned by another agency;                           techniques to quantify anticipated                     rulemaking here as unnecessary.
                                                   (3) Materially alter the budgetary                   present and future benefits and costs as                  Rulemaking is ‘‘unnecessary’’ in those
                                                impacts of entitlement grants, user fees,               accurately as possible.’’ The Office of                situations in which ‘‘the administrative
                                                or loan programs or the rights and                      Information and Regulatory Affairs of                  rule is a routine determination,
                                                obligations of recipients thereof; or                   OMB has emphasized that these                          insignificant in nature and impact, and
                                                   (4) Raise novel legal or policy issues               techniques may include ‘‘identifying                   inconsequential to the industry and to
                                                arising out of legal mandates, the                      changing future compliance costs that                  the public.’’ Utility Solid Waste
                                                President’s priorities, or the principles               might result from technological                        Activities Group v. EPA, 236 F.3d 749,
                                                stated in the Executive order.                          innovation or anticipated behavioral                   755 (D.C. Cir. 2001), quoting U.S.
                                                   This final regulatory action is not a                changes.’’                                             Department of Justice, Attorney
                                                significant regulatory action subject to                   We are issuing these final regulations              General’s Manual on the Administrative
                                                review by OMB under section 3(f) of                     only upon a reasoned determination                     Procedure Act 31 (1947) and South
                                                Executive Order 12866.                                  that their benefits will justify their costs.          Carolina v. Block, 558 F. Supp. 1004,
                                                   Under Executive Order 13771, for                     In choosing among alternative                          1016 (D.S.C. 1983). These regulations
                                                each new regulation that the                            regulatory approaches, we selected                     implement the technical amendments
                                                Department proposes for notice and                      those approaches that maximize net                     made to the IDEA by the ESSA and
                                                comment or otherwise promulgates that                   benefits. Based on the analysis that                   include revisions made for consistency
                                                is a significant regulatory action under                follows, the Department believes that                  with the statute.
                                                Executive Order 12866, it must identify                 these final regulations are consistent                    The APA also generally requires that
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                                                two deregulatory actions. For Fiscal                    with the principles in Executive Order                 regulations be published at least 30 days
                                                Year 2017, any new incremental costs                    13563.                                                 before their effective date, unless the
                                                associated with a new regulation must                      We also have determined that this                   agency has good cause to implement its
                                                be fully offset by the elimination of                   regulatory action would not unduly                     regulations sooner (5 U.S.C. 553(d)(3)).
                                                existing costs through deregulatory                     interfere with State, local, and Tribal                Again, because these final regulations
                                                actions. The final regulations are not a                governments in the exercise of their                   include only conforming changes and
                                                significant regulatory action. Therefore,               governmental functions.                                technical corrections, there is good


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                                                                     Federal Register / Vol. 82, No. 125 / Friday, June 30, 2017 / Rules and Regulations                                              29759

                                                cause to make them effective on the day                 Reporting and recordkeeping                            regular high school diploma does not
                                                they are published.                                     requirements.                                          include a recognized equivalent of a
                                                                                                          Dated: June 27, 2017.                                diploma, such as a general equivalency
                                                Paperwork Reduction Act of 1995
                                                                                                        Betsy DeVos,
                                                                                                                                                               diploma, certificate of completion,
                                                  These regulations do not contain any                                                                         certificate of attendance, or similar
                                                information collection requirements.                    Secretary of Education.
                                                                                                                                                               lesser credential.
                                                                                                          For the reasons discussed in the
                                                Intergovernmental Review                                preamble, the Secretary amends parts                   *     *     *      *   *
                                                  This program is subject to the                        300 and 303 of title 34 of the Code of                   Authority: 20 U.S.C. 1412(a)(1)(B)–(C) and
                                                                                                        Federal Regulations as follows:                        7801(43).
                                                requirements of Executive Order 12372
                                                and the regulations in 34 CFR part 79.                                                                         § 300.105        [Amended]
                                                One of the objectives of the Executive                  PART 300—ASSISTANCE TO STATES
                                                                                                        FOR THE EDUCATION OF CHILDREN                          ■  9. Section 300.105 is amended:
                                                order is to foster an intergovernmental                                                                        ■  A. In paragraph (a)(1) by removing
                                                partnership and a strengthened                          WITH DISABILITIES
                                                                                                                                                               ‘‘§ 300.36’’ and adding in its place
                                                federalism. The Executive order relies                                                                         ‘‘§ 300.39’’.
                                                                                                        ■  1. The authority citation for part 300
                                                on processes developed by State and                                                                            ■ B. In paragraph (a)(3) by removing
                                                                                                        is revised to read as follows:
                                                local governments for coordination and                                                                         ‘‘§ 300.38’’ and adding in its place
                                                review of proposed Federal financial                      Authority: 20 U.S.C. 1221e–3, 1406, 1411–
                                                                                                        1419, and 3474, unless otherwise noted.
                                                                                                                                                               ‘‘§ 300.42’’.
                                                assistance. This document provides
                                                early notification of the Department’s                                                                         § 300.115        [Amended]
                                                                                                        § 300.7     [Amended]
                                                specific plans and actions for this                                                                            ■ 10. Section 300.115 is amended in
                                                program.                                                ■ 2. Section 300.7 is amended by
                                                                                                                                                               paragraph (b)(1) by removing ‘‘§ 300.38’’
                                                                                                        removing the phrase ‘‘section 5210(1)’’
                                                Assessment of Educational Impact                                                                               and adding in its place ‘‘§ 300.39’’.
                                                                                                        and adding in its place ‘‘section
                                                   Based on our review, we have                         4310(2)’’ and by removing the authority                § 300.138        [Amended]
                                                determined that these final regulations                 citation ‘‘20 U.S.C. 7221i(1)’’ and adding             ■  11. Section 300.138 is amended in
                                                do not require transmission of                          in its place ‘‘20 U.S.C. 7221i(2)’’.                   paragraph (a)(1) by removing the phrase
                                                information that any other agency or                                                                           ‘‘highly qualified special education
                                                                                                        § 300.10     [Removed and Reserved]
                                                authority of the United States gathers or                                                                      teacher requirements of § 300.18’’ and
                                                makes available.                                        ■   3. Remove and reserve § 300.10.                    adding in its place ‘‘special education
                                                   Accessible Format: Individuals with                                                                         teacher qualification requirements in
                                                                                                        § 300.16     [Amended]
                                                disabilities can obtain this document in                                                                       § 300.156(c)’’.
                                                an accessible format (e.g., braille, large              ■  4. Section 300.16 is amended in
                                                print, audiotape, or compact disc) on                   paragraph (a)(3) by removing the words                 § 300.146        [Amended]
                                                request to the program contact person                   ‘‘Parts A and B’’ and adding in its place              ■ 12. Section 300.146 is amended in
                                                listed under FOR FURTHER INFORMATION                    ‘‘Part A’’.                                            paragraph (b) by removing ‘‘§ 300.18
                                                CONTACT.                                                                                                       and’’.
                                                                                                        § 300.18    [Removed and Reserved]
                                                   Electronic Access to This Document:
                                                The official version of this document is                ■   5. Remove and reserve § 300.18.                    § 300.154   [Amended]
                                                the document published in the Federal                                                                          ■  13. Section 300.154 is amended in
                                                                                                        § 300.27     [Amended]
                                                Register. Free internet access to the                                                                          paragraph (b)(1)(i) by removing
                                                official edition of the Federal Register                ■ 6. Section 300.27 is amended by                      ‘‘§ 300.41’’ and ‘‘§ 300.42’’ and adding
                                                and the Code of Federal Regulations is                  removing the phrase ‘‘in section                       in their place ‘‘§ 300.42’’ and
                                                available via the Federal Digital System                9101(25) of the ESEA’’ and adding in its               ‘‘§ 300.43’’, respectively.
                                                at: www.gpo.gov/fdsys. At this site you                 place ‘‘‘English learner’ in section 8101              ■ 14. Section 300.156 is amended:
                                                can view this document, as well as all                  of the ESEA’’.                                         ■ A. By revising paragraph (c).
                                                other documents of this Department                                                                             ■ B. In paragraph (d) by removing the
                                                                                                        § 300.35      [Removed and Reserved]
                                                published in the Federal Register, in                                                                          term ‘‘highly qualified’’ and adding in
                                                text or Portable Document Format                        ■ 7. Remove and reserve § 300.35.                      its place ‘‘who meet the applicable
                                                (PDF). To use PDF you must have                         ■ 8. Section 300.102 is amended by                     requirements described in paragraph (c)
                                                Adobe Acrobat Reader, which is                          revising paragraph (a)(3)(iv) and by                   of this section’’ after the word
                                                available free at the site. You may also                revising the authority citation to read as             ‘‘personnel’’.
                                                access documents of the Department                      follows:                                               ■ C. In paragraph (e) by removing the
                                                published in the Federal Register by                                                                           phrase ‘‘be highly qualified’’ and adding
                                                using the article search feature at:                    § 300.102     Limitation—exception to FAPE
                                                                                                                                                               in its place ‘‘meet the applicable
                                                www.federalregister.gov. Specifically,                  for certain ages.
                                                                                                                                                               requirements described in paragraph (c)
                                                through the advanced search feature at                    (a)* * *                                             of this section’’.
                                                this site, you can limit your search to                   (3)* * *                                                The revision reads as follows:
                                                documents published by the                                (iv) As used in paragraphs (a)(3)(i)
                                                Department.                                             through (iii) of this section, the term                § 300.156        Personnel qualifications.
                                                                                                        regular high school diploma means the                  *     *     *    *     *
                                                List of Subjects in 34 CFR Parts 300 and                standard high school diploma awarded                     (c) Qualifications for special
                                                303
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                                                                                                        to the preponderance of students in the                education teachers. (1) The
                                                  Administrative practice and                           State that is fully aligned with State                 qualifications described in paragraph (a)
                                                procedure, Education of individuals                     standards, or a higher diploma, except                 of this section must ensure that each
                                                with disabilities, Elementary and                       that a regular high school diploma shall               person employed as a public school
                                                secondary education, Equal educational                  not be aligned to the alternate academic               special education teacher in the State
                                                opportunity, Grant programs—                            achievement standards described in                     who teaches in an elementary school,
                                                education, Privacy, Private schools,                    section 1111(b)(1)(E) of the ESEA. A                   middle school, or secondary school—


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                                                29760                Federal Register / Vol. 82, No. 125 / Friday, June 30, 2017 / Rules and Regulations

                                                   (i) Has obtained full State certification              (2) Are the same as the State’s long-                achievement standards, including any
                                                as a special education teacher                          term goals and measurements of interim                 effects of State and local policies on a
                                                (including certification obtained                       progress for children with disabilities                student’s education resulting from
                                                through an alternate route to                           under section 1111(c)(4)(A)(i) of the                  taking an alternate assessment aligned
                                                certification as a special educator, if                 ESEA.                                                  with alternate academic achievement
                                                such alternate route meets minimum                      *     *     *    *     *                               standards, such as how participation in
                                                requirements described in 34 CFR                                                                               such assessments may delay or
                                                                                                        ■ 16. Section 300.160 is amended by
                                                200.56(a)(2)(ii) as such section was in                                                                        otherwise affect the student from
                                                                                                        revising paragraphs (c) through (f) to
                                                effect on November 28, 2008), or passed                                                                        completing the requirements for a
                                                                                                        read as follows:
                                                the State special education teacher                                                                            regular high school diploma; and
                                                licensing examination, and holds a                      § 300.160    Participation in assessments.                (2) Not preclude a student with the
                                                license to teach in the State as a special              *       *     *   *     *                              most significant cognitive disabilities
                                                education teacher, except that when                        (c) Alternate assessments aligned with              who takes an alternate assessment
                                                used with respect to any teacher                        alternate academic achievement                         aligned with alternate academic
                                                teaching in a public charter school, the                standards for students with the most                   achievement standards from attempting
                                                teacher must meet the certification or                  significant cognitive disabilities. (1) If a           to complete the requirements for a
                                                licensing requirements, if any, set forth               State has adopted alternate academic                   regular high school diploma.
                                                in the State’s public charter school law;                                                                         (e) Inform parents. A State (or in the
                                                                                                        achievement standards for children with
                                                   (ii) Has not had special education                                                                          case of a district-wide assessment, an
                                                                                                        disabilities who are students with the
                                                certification or licensure requirements                                                                        LEA) must ensure that parents of
                                                                                                        most significant cognitive disabilities as
                                                waived on an emergency, temporary, or                                                                          students selected to be assessed using
                                                                                                        permitted in section 1111(b)(1)(E) of the
                                                provisional basis; and                                                                                         an alternate assessment aligned with
                                                                                                        ESEA, the State (or, in the case of a
                                                   (iii) Holds at least a bachelor’s degree.                                                                   alternate academic achievement
                                                                                                        district-wide assessment, an LEA) must
                                                   (2) A teacher will be considered to                                                                         standards under the State’s guidelines
                                                                                                        develop and implement alternate
                                                meet the standard in paragraph (c)(1)(i)                                                                       in paragraph (c)(1) of this section are
                                                                                                        assessments and guidelines for the
                                                of this section if that teacher is                                                                             informed, consistent with 34 CFR
                                                                                                        participation in alternate assessments of
                                                participating in an alternate route to                                                                         200.2(e), that their child’s achievement
                                                                                                        those children with disabilities who
                                                special education certification program                                                                        will be measured based on alternate
                                                                                                        cannot participate in regular
                                                under which—                                                                                                   academic achievement standards, and of
                                                                                                        assessments, even with
                                                   (i) The teacher—                                                                                            how participation in such assessments
                                                   (A) Receives high-quality professional               accommodations, as indicated in their
                                                                                                                                                               may delay or otherwise affect the
                                                development that is sustained,                          respective IEPs, as provided in
                                                                                                                                                               student from completing the
                                                intensive, and classroom-focused in                     paragraph (a) of this section.
                                                                                                                                                               requirements for a regular high school
                                                order to have a positive and lasting                       (2) For assessing the academic
                                                                                                                                                               diploma.
                                                impact on classroom instruction, before                 progress of children with disabilities                    (f) Reports. An SEA (or, in the case of
                                                and while teaching;                                     who are students with the most                         a district-wide assessment, an LEA)
                                                   (B) Participates in a program of                     significant cognitive disabilities under               must make available to the public, and
                                                intensive supervision that consists of                  title I of the ESEA, the alternate                     report to the public with the same
                                                structured guidance and regular ongoing                 assessments and guidelines in                          frequency and in the same detail as it
                                                support for teachers or a teacher                       paragraph (c)(1) of this section must—                 reports on the assessment of
                                                mentoring program;                                         (i) Be aligned with the challenging                 nondisabled children, the following:
                                                   (C) Assumes functions as a teacher                   State academic content standards under                    (1) The number of children with
                                                only for a specified period of time not                 section 1111(b)(1) of the ESEA and                     disabilities participating in regular
                                                to exceed three years; and                              alternate academic achievement                         assessments, and the number of those
                                                   (D) Demonstrates satisfactory progress               standards under section 1111(b)(1)(E) of               children who were provided
                                                toward full certification as prescribed by              the ESEA; and                                          accommodations (that did not result in
                                                the State; and                                             (ii) Measure the achievement of                     an invalid score) in order to participate
                                                   (ii) The State ensures, through its                  children with disabilities who are                     in those assessments.
                                                certification and licensure process, that               students with the most significant                        (2) The number of children with
                                                the provisions in paragraph (c)(2)(i) of                cognitive disabilities against those                   disabilities, if any, participating in
                                                this section are met.                                   standards.                                             alternate assessments based on grade-
                                                *       *    *     *      *                                (3) Consistent with section                         level academic achievement standards
                                                                                                        1111(b)(1)(E)(ii) of the ESEA and 34 CFR               in school years prior to 2017–2018.
                                                ■ 15. Section 300.157 is amended:
                                                                                                        200.6(c)(6), a State may not adopt                        (3) The number of children with
                                                ■ A. By revising paragraph (a)(2).
                                                ■ B. In paragraph (b) by removing
                                                                                                        modified academic achievement                          disabilities, if any, participating in
                                                ‘‘including measurable annual                           standards or any other alternate                       alternate assessments aligned with
                                                objectives for progress by children with                academic achievement standards that do                 modified academic achievement
                                                disabilities under section                              not meet the requirements in section                   standards in school years prior to 2016–
                                                1111(b)(2)(C)(v)(II)’’ and adding in its                1111(b)(1)(E) of the ESEA for any                      2017.
                                                place ‘‘including measurements of                       children with disabilities under section                  (4) The number of children with
                                                interim progress for children with                      602(3) of the IDEA.                                    disabilities who are students with the
                                                disabilities under section                                 (d) Explanation to IEP Teams. A State               most significant cognitive disabilities
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                                                1111(c)(4)(A)(i)’’.                                     (or in the case of a district-wide                     participating in alternate assessments
                                                   The revision reads as follows:                       assessment, an LEA) must—                              aligned with alternate academic
                                                                                                           (1) Provide to IEP teams a clear                    achievement standards.
                                                § 300.157 Performance goals and                         explanation of the differences between                    (5) Compared with the achievement of
                                                indicators.                                             assessments based on grade-level                       all children, including children with
                                                *       *    *       *      *                           academic achievement standards and                     disabilities, the performance results of
                                                    (a) * * *                                           those based on alternate academic                      children with disabilities on regular


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                                                                             Federal Register / Vol. 82, No. 125 / Friday, June 30, 2017 / Rules and Regulations                                                                                             29761

                                                assessments, alternate assessments                                         ■  B. Revising paragraph (b)(4)(xi).                                       § 303.32        [Removed and Reserved]
                                                based on grade-level academic                                              ■  C. In paragraph (c)(3)(i)(A)(2) by
                                                                                                                                                                                                      ■   22. Remove and reserve § 303.32.
                                                achievement standards (prior to 2017–                                      removing ‘‘section 9101’’ and adding in
                                                2018), alternate assessments based on                                      its place ‘‘section 8101’’.                                                [FR Doc. 2017–13801 Filed 6–29–17; 8:45 am]
                                                modified academic achievement                                                 The revision reads as follows:                                          BILLING CODE 4000–01–P
                                                standards (prior to 2016–2017), and                                        § 300.704         State-level activities.
                                                alternate assessments aligned with
                                                alternate academic achievement                                             *     *     *     *     *
                                                                                                                             (b) * * *                                                                ENVIRONMENTAL PROTECTION
                                                standards if—                                                                (4) * * *
                                                   (i) The number of children                                                                                                                         AGENCY
                                                                                                                             (xi) To provide technical assistance to
                                                participating in those assessments is                                      schools and LEAs, and direct services,
                                                sufficient to yield statistically reliable                                                                                                            40 CFR Parts 9, 22, 85, 86, 600, 1033,
                                                                                                                           including direct student services                                          1036, 1037, 1039, 1042, 1043, 1065,
                                                information; and                                                           described in section 1003A(c)(3) of the
                                                   (ii) Reporting that information will                                                                                                               1066, and 1068
                                                                                                                           ESEA, to children with disabilities, in
                                                not reveal personally identifiable                                         schools or LEAs implementing
                                                information about an individual student                                                                                                               DEPARTMENT OF TRANSPORTATION
                                                                                                                           comprehensive support and
                                                on those assessments.                                                      improvement activities or targeted
                                                *       *   *      *     *                                                                                                                            National Highway Traffic Safety
                                                                                                                           support and improvement activities                                         Administration
                                                § 300.207         [Amended]
                                                                                                                           under section 1111(d) of the ESEA on
                                                                                                                           the basis of consistent                                                    49 CFR Parts 523, 534, 535, and 538
                                                ■ 17. Section 300.207 is amended by                                        underperformance of the disaggregated
                                                removing ‘‘section 2122 of the ESEA’’                                      subgroup of children with disabilities,
                                                and adding in its place ‘‘section 2102(b)                                  including providing professional                                           [EPA–HQ–OAR–2014–0827; NHTSA–2014–
                                                of the ESEA’’.                                                                                                                                        0132; FRL–9950–25–OAR]
                                                                                                                           development to special and regular
                                                § 300.306         [Amended]
                                                                                                                           education teachers who teach children
                                                                                                                           with disabilities, based on scientifically                                 RIN 2060–AS16; RIN 2127–AL52
                                                ■  18. Section 300.306 is amended in                                       based research to improve educational
                                                paragraph (b)(1)(i) by adding the phrase                                   instruction, in order to improve                                           Greenhouse Gas Emissions and Fuel
                                                ‘‘as such section was in effect on the day                                 academic achievement based on the                                          Efficiency Standards for Medium- and
                                                before the date of enactment of the                                        challenging academic standards                                             Heavy-Duty Engines and Vehicles—
                                                Every Student Succeeds Act (December                                       described in section 1111(b)(1) of the                                     Phase 2
                                                9, 2015)’’ after ‘‘ESEA’’.                                                 ESEA.                                                                      Correction
                                                § 300.324         [Amended]                                                *     *     *     *     *
                                                                                                                                                                                                      ■ In rule document 2016–21203,
                                                ■  19. Section 300.324 is amended in                                       PART 303—EARLY INTERVENTION                                                appearing on pages 73478–74274, in the
                                                paragraph (d)(2)(ii) by removing                                           PROGRAM FOR INFANTS AND                                                    issue of Tuesday, October 25, 2016,
                                                ‘‘300.112’’ and adding in its place                                        TODDLERS WITH DISABILITIES                                                 make the following corrections:
                                                ‘‘300.114’’.
                                                ■ 20. Section 300.704 is amended:                                          ■ 21. The authority citation for part 303                                  § 1036.805 Symbols, abbreviations, and
                                                ■ A. In paragraph (b)(4)(x) by removing                                    continues to read as follows:                                              acronyms. [Corrected]
                                                ‘‘6111 of the ESEA’’ and adding in its                                       Authority: 20 U.S.C. 1431 through 1444,                                  ■ 1. On page 74044, in paragraph (b),
                                                place ‘‘1201 of the ESEA’’.                                                unless otherwise noted.                                                    the table should read as follows:

                                                                                                                                                                                                                                                       Unit in
                                                                                                                                                                                                                                                      terms of
                                                      Symbol                                            Quantity                                                                   Unit                                    Unit symbol                SI base
                                                                                                                                                                                                                                                        units

                                                a .....................    atomic hydrogen-to-carbon ratio .....................                      mole per mole .............................................         mol/mol ........        1.
                                                b .....................    atomic oxygen-to-carbon ratio .........................                    mole per mole .............................................         mol/mol ........        1.
                                                CdA .................      drag area .........................................................        meter squared ............................................          m2 ................     m2.
                                                Crr ...................    coefficient of rolling resistance ........................                 kilogram per metric ton ...............................             kg/tonne .......        10¥3.
                                                D .....................    distance ...........................................................       miles or meters ...........................................         mi or m .........       m.
                                                e .....................    mass weighted emission result .......................                      grams/ton-mile ............................................         g/ton-mi ........       g/kg-km.
                                                Eff ...................    efficiency.
                                                Em ...................     mass-specific net energy content ....................                      megajoules/kilogram ...................................             MJ/kg ...........       m2·s¥2.
                                                fn .....................   angular speed (shaft) ......................................               revolutions per minute ................................             r/min .............     π·30·s¥1.
                                                i ......................   indexing variable.
                                                ka ....................    drive axle ratio.
                                                ktopgear ............      highest available transmission gear.
                                                m ....................     mass ................................................................      pound mass or kilogram .............................                lbm or kg ......        kg.
                                                M ....................     molar mass ......................................................          gram per mole ............................................          g/mol ............      10¥3·kg·mol¥1.
                                                M ....................     vehicle mass ....................................................          kilogram ......................................................     kg .................    kg.
                                                Mrotating ...........      inertial mass of rotating components ..............                        kilogram ......................................................     kg .................    kg.
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                                                N .....................    total number in a series.
                                                P .....................    power ...............................................................      kilowatt ........................................................   kW ................     103·m2·kg·s¥3.
                                                T .....................    torque (moment of force) .................................                 newton meter ..............................................         N·m ..............      m2·kg·s¥2.
                                                t ......................   time ..................................................................    second ........................................................     s ...................   s.
                                                Δt ....................    time interval, period, 1/frequency ....................                    second ........................................................     s ...................   s.
                                                UF ..................      utility factor.
                                                v .....................    speed ...............................................................      miles per hour or meters per second .........                       mi/hr or m/s ..         m·s¥1.



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Document Created: 2017-06-30 06:01:47
Document Modified: 2017-06-30 06:01:47
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal regulations.
DatesThese final regulations are effective June 30, 2017.
ContactMary Louise Dirrigl, U.S. Department of Education, 550 12th Street SW., Potomac Center Plaza, Room 5156, Washington, DC 20202-2641. Telephone: (202) 245-7324 or by email: [email protected] If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
FR Citation82 FR 29755 
RIN Number1820-AB74
CFR Citation34 CFR 300
34 CFR 303
CFR AssociatedAdministrative Practice and Procedure; Education of Individuals with Disabilities; Elementary and Secondary Education; Equal Educational Opportunity; Grant Programs-Education; Privacy; Private Schools and Reporting and Recordkeeping Requirements

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