High School Equivalency Program and College Assistance Migrant Program, The Federal TRIO Programs, and Gaining Early Awareness and Readiness for Undergraduate Program

DEPARTMENT OF EDUCATION

34 CFR Parts 206, 642, 643, 644, 645, 646, 647, and 694

RIN 1840-AD01

[Docket ID ED-2010-OPE-0002]

High School Equivalency Program and College Assistance Migrant Program, The Federal TRIO Programs, and Gaining Early Awareness and Readiness for Undergraduate Program

AGENCY:

Office of Postsecondary Education and Office of Elementary and Secondary Education, Department of Education.

ACTION:

Final regulations.

SUMMARY:

The Secretary amends the regulations, and establishes new regulations, for the High School Equivalency Program and College Assistance Migrant Program (HEP and CAMP); the Federal TRIO programs (TRIO programs—Training program for Federal TRIO programs (Training), Talent Search (TS), Educational Opportunity Centers (EOC), Upward Bound (UB), Student Support Services (SSS), and the Ronald E. McNair Postbaccalaureate Achievement (McNair) programs); and the Gaining Early Awareness and Readiness for Undergraduate (GEAR UP) program.

The purpose of HEP is to help migrant and seasonal farmworkers and their immediate family members obtain a general educational development (GED) credential, while CAMP assists students from this background to complete their first academic year of college and continue in postsecondary education. The Federal TRIO programs consist of five postsecondary educational opportunity outreach and support programs designed to motivate and assist low-income individuals, first-generation college students, and individuals with disabilities to enter and complete secondary and postsecondary programs of study and enroll in graduate programs, and a training program for project staff working in one or more of the Federal TRIO programs. The purpose of the GEAR UP program is to increase the number of low-income students who are prepared to enter and succeed in postsecondary education.

These regulations are needed to implement provisions of the Higher Education Act of 1965, as amended (HEA) by the Higher Education Opportunity Act of 2008 (HEOA) that relate to the HEP and CAMP, Federal TRIO programs, and GEAR UP program.

DATES:

Effective Date:

These regulations are effective December 27, 2010.

FOR FURTHER INFORMATION CONTACT:

For general information, Pamela J. Maimer, U.S. Department of Education, 1990 K Street, NW., room 8014, Washington, DC 20006-8014. Telephone: (202) 502-7704 or via the Internet at:

Pamela.Maimer@ed.gov.

For information related to HEP and CAMP issues, Nathan Weiss, U.S. Department of Education, Office of Migrant Education, 400 Maryland Ave. SW., room 3E-321, Washington, DC 20202-6135. Telephone: (202) 260-7496 or via the Internet at:

Nathan.Weiss@ed.gov.

For information related to Federal TRIO issues, Frances Bergeron, U.S. Department of Education, 1990 K Street, NW., room 7059, Washington, DC 20006-7059. Telephone: (202) 502-7528 or via the Internet at

Frances.Bergeron@ed.gov.

For information related to GEAR UP issues, James Davis, U.S. Department of Education, 1990 K Street, NW., room 6109, Washington, DC 20006-6109. Telephone: (202) 502-7802 or via the Internet at:

James.Davis@ed.gov.

If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.

Individuals with disabilities can obtain this document in an accessible format (

e.g.,

braille, large print, audiotape, or computer diskette) on request to any of the contact persons listed under

FOR FURTHER INFORMATION CONTACT

.

SUPPLEMENTARY INFORMATION:

On March 23, 2010, the Secretary published a notice of proposed rulemaking (NPRM) for the HEP and CAMP, the Federal TRIO programs, and the GEAR UP program in the

Federal Register

(75 FR 13814). In the preamble to the NPRM, the Secretary discussed on pages 13816 through 13859 the major changes proposed in that document to strengthen and improve the administration of the HEP and CAMP, the Federal TRIO programs, and the GEAR UP program authorized under the HEA.

These final regulations implement changes made by the HEOA to discretionary grant programs authorized by title IV of the HEA, including:

HEP and CAMP:

• Amending § 206.3(a)(1) for HEP and CAMP to allow students to qualify for the program through their own qualifying work, or that of an immediate family member, rather than only through their own work or that of a parent, as the statute previously held (see section 418A(b)(B)(i) of the HEA).

• Amending § 206.5(c) to define the term

immediate family member

to include only individuals who are dependent upon a migrant or seasonal farmworker (see section 418A(b)(B)(i) of the HEA).

• Amending § 206.5(c) to revise the definition of the term

seasonal farmworker

to clarify that the individual's primary employment in migrant and seasonal farmwork must occur for at least 75 days within the past 24 months (see section 418A(b)(1)(B)(i) of the HEA).

• Amending the authorized HEP services section in § 206.10(b) to (1) provide that permissible HEP services include preparation for college entrance examinations; (2) provide that permissible HEP services include all stipends—not only weekly stipends—for HEP participants; (3) add transportation and child care as examples of essential supportive services; and (4) specify that HEP services include other activities to improve persistence and retention in postsecondary education (see section 418A(b) of the HEA).

• Amending CAMP services in § 206.10(b)(2) to specify that: (1) Permissible CAMP services include supportive and instructional services to improve placement, persistence, and retention in postsecondary education; (2) these supportive services include personal, academic, career, economic education, or personal finance counseling as an ongoing part of the program, and (3) permissible CAMP services include internships (see section 418A(c)(1) of the HEA).

• Amending § 206.11(b) to specify that follow-up CAMP services include: (1) Referring CAMP students to on-campus or off-campus providers of counseling services, academic assistance, or financial aid, and coordinating those services, assistance, and aid with other non-program services, assistance, and aid, including services, assistance, and aid provided by community-based organizations, which may include mentoring and guidance, and (2) for students attending two-year institutions of higher education, encouraging the students to transfer to four-year institutions of higher education, where appropriate, and monitoring the rate of transfer of these students (see section 418A(c)(2) of the HEA).

• Amending § 206.20(b)(2) to specify that the Secretary must not allocate an amount less than $180,000 for HEP and CAMP grants (see section 418A(e) of the HEA).

• Adding § 206.31 to the HEP and CAMP program regulations to specify the criteria the Department considers in evaluating prior experience (see section 418A(f) of the HEA).

Federal TRIO Programs

• Amending §§ 643.7(b) (TS), 644.7(b) (EOC), 645.6(b) (UB), 646.7(b) (SSS), and 647.7(b) (McNair) to revise or add definitions for

different campus

and

different population,

which change the prior regulatory definitions of these terms for the SSS program and the Department's administrative practice with regard to the number of applications an eligible entity may submit under each of the TRIO programs (see section 402A(h)(1) and (h)(2) of the HEA).

• Adding new §§ 642.11 and 642.12 (Training) and amending § 643.4 (TS), part 645 (UB, Upward Bound Math and Science (UBMS), and Veterans Upward Bound (VUB)) § 646.4 (SSS), and § 647.4 (McNair) to specify the services or activities that projects funded under the Federal TRIO programs must provide and the services or activities that these projects may provide.

• Amending §§ 643.7(b) (TS), 644.7(b) (EOC), 645.6(b) (UB), and 646.7(b) (SSS) to add new categories of participants (foster care youth and homeless children and youth) for whom projects funded under these programs are to provide services (see section 402A(e)(3) of the HEA).

• Amending newly redesignated § 642.22 (Training) and §§ 643.22 (TS), 644.22 (EOC), 645.32 (UB), 646.22 (SSS), and 647.22 (McNair) to align prior experience determinations with statutorily revised outcome criteria (see section 402A(f)(3)(A) of the HEA (TS), section 402A(f)(3)(B) of the HEA (UB), section 402A(f)(3)(C) of the HEA (SSS), section 402A(f)(3)(D) of the HEA (McNair), and section 402A(f)(3)(E) of the HEA (EOC)).

• Adding §§ 642.25 (Training), 643.24 (TS), 644.24 (EOC), 645.35 (UB), 646.24 (SSS), and 647.24 (McNair) to provide a new procedure to allow unsuccessful grant applicants to request a review of alleged technical, administrative, or scoring errors that affected the applicant's application.

• Amending newly redesignated § 642.6(b) (Training) and §§ 643.7(b) (TS), 644.7(b) (EOC), 645.6(b) (UB), 646.7(b) (SSS), and 647.7(b) (McNair) to revise definitions for some terms and to add new definitions to implement amendments to the HEA by the HEOA:

•

Financial and economic literacy

(§§ 643.7(b) (TS), 644.7(b) (EOC), 645.6(b) (UB), 646.7(b) (SSS), and 647.7(b) (McNair)) (see section 402B(b)(6) of the HEA (TS), section 402C(b)(6) of the HEA (UB), section 402D(b)(4) of the HEA (SSS), section 402E(c)(1) of the HEA (McNair)), and section 402F(b)(5) of the HEA (EOC)).

•

Foster care youth

and

homeless children and youth

(newly redesignated § 642.6(b) (Training) and §§ 643.7(b) (TS), 644.7(b) (EOC), 645.6(b) (UB), and 646.7(b) (SSS)) (see sections 402A(e)(3) and 402B(c)(7) of the HEA (TS), section 402C(d)(7) of the HEA (UB), section 402D(a)(3) and (c)(6) of the HEA (SSS), section 402F(b)(11) of the HEA (EOC), and section 402G(b)(5) of the HEA (Training)).

•

Graduate center; groups underrepresented in graduate school;

and

research and scholarly activities

(§ 647.7(b) (McNair)) (see sections 101 and 102 of the HEA and section 402E(d)(2) of the HEA (McNair)).

•

Individual with a disability

(newly redesignated § 642.6(b) (Training) and §§ 643.7(b) (TS), 644.7(b) (EOC), 645.6(b) (UB), and 646.7(b) (SSS)) (see section 402B(c)(7) of the HEA (TS), section 402C(d)(7) of the HEA (UB), section 402D(a)(3) and (c)(6) of the HEA (SSS), section 402F(b)(11) of the HEA (EOC), and section 402G(b)(5) of the HEA (Training)).

•

Individual who has a high risk for academic failure

and

veteran who has a high risk for academic failure

(§ 645.6(b) (UB and VUB)) (see sections 402A(f)(3)(B)(iii) and (iv) and 402C(e)(2) of the HEA (UB)).

•

Institution of higher education

(newly redesignated § 642.6(b) (Training) and §§ 643.7(b) (TS), 644.7(b) (EOC), 645.6(b) (UB), 646.7(b) (SSS), and 647.7(b) (McNair)) (see sections 101 and 102 of the HEA).

•

Regular secondary school diploma

and

rigorous secondary school program of study

(§§ 643.7(b) (TS) and 645.6(b) (UB)) (see section 402A(f)(3)(A)(iii) and (iv) of the HEA (TS) and section 402A(f)(3)(B) of the HEA (UB)).

•

Veteran

(newly redesignated § 642.6(b) (Training) and §§ 643.7(b) (TS), 644.7(b) (EOC), and 645.6 (b) (UB)) (see section 402A(h)(5) of the HEA (TS, EOC, and UB)).

Additionally, the regulations for the TRIO programs were amended to reflect other changes made by the HEOA, other amendments to the HEA, and established administrative practices. These changes include the following:

• Amending the project period for the TRIO programs in newly redesignated § 642.4 (Training) and §§ 643.5 (TS), 644.5 (EOC), 645.34 (UB), 646.5 (SSS), and 647.5 (McNair) to define the project period as two years for Training and five years for TS, EOC, UB, SSS, and McNair (see section 402A(b)(2)(B) and (C) of the HEA).

• Revising the selection criteria related to “Objectives” for the following TRIO pre-college and college programs: TS (§ 643.21(b)); EOC (§ 644.21(b)); UB (§ 645.31(b)(1), VUB (§ 645.31(b)(2)); SSS (§ 646.21(b)); and McNair (§ 647.21(b)) (see section 402A(f)(3)(A) of the HEA (TS), section 402A(f)(3)(B) of the HEA (UB), section 402A(f)(3)(C) of the HEA (SSS), section 402A(f)(3)(D) of the HEA (McNair), and section 402A(f)(3)(E) of the HEA (EOC)).

• Removing the minimum number of participants in the regulations for TS, EOC, UB, UBMS, and VUB projects (see sections 402A(f), 402A(b)(3), 402B (TS), 402C (UB), 402F (EOC) of the HEA). For each grant competition, the Department will establish the minimum number of participants to be served by a grantee through the

Federal Register

notice inviting applications.

• Amending newly redesignated §§ 642.22 and 642.24 of the TRIO Training regulations to reflect current law and practice regarding: (1) The need for the project selection criteria and the process for ranking applications by priority; (2) the use of prior experience points in the ranking of applications for funding; and (3) the number of prior experience points that can be earned (see section 402G(2) of the HEA).

GEAR UP

• Redesignating § 694.15 as § 694.19 to accommodate the proposed addition of other regulatory provisions. Amending newly redesignated § 694.19 to provide that the Secretary award competitive preference priority points to an eligible applicant for a State GEAR UP grant that has both carried out a successful State GEAR UP grant prior to August 14, 2008, and demonstrated a prior commitment to early intervention leading to college access through collaboration and replication of successful strategies; and to specify how the Department determines whether a State GEAR UP grant has been “successful” (see section 404A(b)(3) of the HEA).

• Adding § 694.20 to explain when a GEAR UP grantee is allowed to provide services to students attending an institution of higher education (see section 404A(b)(2) of the HEA).

• Adding new § 694.24 to require grantees that continue to provide services to students through their first year of attendance at an institution of higher education, to the extent practicable, to coordinate with other campus programs in order not to duplicate services (see section 404A(b)(2) of the HEA).

• Amending § 694.7(a)(2) to require that a GEAR UP grantee make substantial progress towards meeting the matching percentage stated in its approved application for each year of the project period. Grantees are no longer required to meet the matching requirement each year of the project period (section 404C(b)(1) of the HEA).

• Adding new § 694.8 to: (1) Provide authority for the Secretary to approve a Partnership applicant's request for a waiver of up to 50 or 75 percent of the matching requirement for up to two years under certain circumstances; and (2) create a multiple-tiered system for different types of waiver requests (see section 404C(b)(2) of the HEA).

• Adding new § 694.8(b)(3) to specify that at the time of application, the Secretary may provide tentative approval of a Partnership applicant's request for a 50-percent waiver for the entire project period so that a Partnership applicant that meets the conditions for such a waiver has an opportunity to apply for a grant without needing to identify additional sources of match funding in the later years of the project period (see section 404C(b)(2) of the HEA).

• Adding new §§ 694.21 and 694.22 to specify required and allowable activities and separate these required and allowable activities into multiple regulatory sections (section 404D of the HEA).

• Adding new § 694.22(e) to specify that GEAR UP grantees may provide activities that support participating students to develop graduation and career plans, including career awareness and planning assistance as they relate to a rigorous academic curriculum (see section 404D(b)(5)(D) of the HEA).

• Adding newly redesignated §§ 694.13 and new 694.14 to clarify that GEAR UP funds may be used to support the costs of administering a scholarship program as well as the costs of the scholarships themselves (see sections 404E(a)(1) and 404D(b)(7) of the HEA).

• Adding new § 694.24 to describe the types of services that a grantee may provide to students in their first year of attendance at an institution of higher education and listing examples of these services (see section 404D of the HEA).

• Amending newly redesignated § 694.13(a) to specify the minimum amount of scholarship funding for an eligible student, and provide that the State or Partnership awarding the GEAR UP scholarship may reduce the scholarship amount if an eligible student who is awarded a GEAR UP scholarship attends an institution of higher education on a less than full-time basis during any award year (see section 404E(d) of the HEA).

• Adding new § 694.14(b) to incorporate the statutory definition of the term

eligible student

(from section 404E(g) of the HEA) in the program regulations.

• Clarifying in new § 694.14(c)(2) the amount of funds that State grantees that do not receive a waiver of the requirement that States must expend at least 50 percent of their GEAR UP funding on scholarships must hold in reserve for scholarships and how States must use these funds (see section 404E(e) of the HEA).

• Clarifying in newly redesignated § 694.13(c) that scholarships must be made to all students who are eligible under the definition in § 694.13(d) and that a grantee may not impose additional eligibility criteria that would have the effect of limiting or denying a scholarship to an eligible student (see section 404E(e) and (g) of the HEA).

• Adding new 694.14(e) to specify that States awarding scholarships must provide information on the eligibility requirements for the scholarships to all participating students upon the students' entry into the GEAR UP program (see section 404E(c) of the HEA).

• Adding new 694.14(f) to specify that States must provide scholarship funds to all eligible students who attend an institution of higher education in the State, and may provide these scholarship funds to eligible students who attend institutions of higher education outside the State (see section 404E(e) and (g) of the HEA).

• Specifying in new § 694.14(g) that a State or Partnership that chooses to participate in the scholarship component in accordance with section 404E of the HEA may award continuation scholarships in successive award years to each student who received an initial scholarship and who is enrolled or accepted for enrollment in a program of undergraduate instruction at an institution of higher education (see section 404E of the HEA).

• Amending newly redesignated § 694.15 to specify that a GEAR UP Partnership that does not participate in the GEAR UP scholarship component may provide financial assistance for postsecondary education using non-Federal funds, and those funds may be used to comply with the program's matching requirement (see section 404C(b) of the HEA).

• Adding new § 694.16 to specify the requirements for the return of scholarship funds. Specifically, (1) providing that scholarship funds held in reserve by States under §§ 694.12(b)(1) or 694.12(c) or by Partnerships under section 404D(b)(7) of the HEA that are not used by an eligible student within six years of the student's scheduled completion of secondary school may be redistributed by the grantee to other eligible students; (2) requiring the return of remaining Federal funds within 45 days after the six-year period for expending the scholarship funds expires; (3) requiring grantees to annually furnish information, as the Secretary may require, on the amount of Federal and non-Federal funds reserved and held for GEAR UP scholarships and the disbursement of those funds to eligible students until these funds are fully expended or returned to the Secretary; and (4) providing that a scholarship fund under the GEAR UP program is subject to audit or monitoring by authorized representatives of the Secretary throughout the life of the fund (see section 404E(e)(4) of the HEA).

• Adding new § 694.25 to require grantees that receive initial grant awards after the passage of the HEOA to continue to serve students from a previous grant received by the grantee (see section 404A(b)(3)(B) of the HEA).

• Adding new § 694.25(a) to clarify whom a grantee must serve if not all students in the cohort attend the same school after the cohort completes the last grade level offered by the school at which the cohort began to receive GEAR UP services (see section 404B(d) of the HEA).

• Amending newly redesignated § 694.18 to specify that 21st Century Scholarship Certificates are to be provided by the grantees (rather than by the Secretary to the grantees), and must indicate the estimated amount of any scholarship that a student may be eligible to receive.

Analysis of Comments and Changes

The regulations in this document were developed through the use of negotiated rulemaking. Section 492 of the HEA requires that, before publishing any proposed regulations to implement programs under title IV of the HEA, the Secretary must obtain public involvement in the development of the proposed regulations. After obtaining advice and recommendations, the Secretary must conduct a negotiated rulemaking process to develop the proposed regulations. The negotiated rulemaking committee did not reach consensus on the proposed regulations that were published on March 23, 2010. The Secretary invited comments on the proposed regulations by April 22, 2010. In response to the Secretary's invitation in the NPRM to the proposed

regulations, 455 parties submitted comments on the proposed regulations. An analysis of the comments and of the changes in the regulations since publication of the NPRM follows.

We group major issues according to subject, with appropriate sections of the regulations referenced in parentheses. We discuss other substantive issues under the sections of the regulations to which they pertain. Generally, we do not address technical and other minor changes, suggested changes that the law does not authorize the Secretary to make, or comments pertaining to issues that were not within the scope of the NPRM.

Part 206—Special Educational Programs for Students Whose Families Are Engaged in Migrant and Other Seasonal Farmwork—High School Equivalency Program (HEP) and College Assistance Migrant Program (CAMP)

Who May Benefit From HEP and CAMP? (34 CFR Part 206)

Comment:

One commenter inquired as to whether HEP would only benefit farm workers and their families and stated that there were others, not necessarily in that group, who could potentially be helped by this program.

Discussion:

We appreciate the commenter's view that HEP could potentially help individuals who are not migrant and seasonal farmworkers. However, section 418A of the HEA, which authorizes both HEP and CAMP, requires that program activities focus on migrant and seasonal farmworkers and their immediate family. The Department does not have the authority to expand this statutorily prescribed requirement.

Changes:

None.

Types of Services for CAMP Projects (§ 206.10(b)(2))

Comment:

None.

Discussion:

In our review of § 206.10(b)(2), we realized that § 206.10(b)(2)(iv) contained a typographical error and we have corrected it.

Changes:

In § 206.10(b)(2)(iv), we have removed the word “student” and added, in its place, the word “students” to correct a typographical error.

Prior Experience in HEP and CAMP (§ 206.31(a))

Comment:

One commenter suggested that the Department revise the wording of a note that was included in the NPRM's preamble discussion of prior experience under HEP and CAMP. Specifically, the commenter suggested deleting the phrase “for the priority” from the following note, which appeared on page 13820 of the NPRM (75 FR 13814, 13820):

“Note:

The TRIO programs have had a longstanding requirement that only applicants with an expiring TRIO project are eligible for the priority for prior experience. Consequently, in providing the same degree of consideration for prior experience as provided under the Federal TRIO programs, we view this aspect of proposed § 206.31(a) to be statutorily required.”

Discussion:

We appreciate the commenter's concern for clarifying this language from the preamble of the NPRM. In this notice of final regulations, we make changes, if appropriate, to the regulations themselves, not language from the preamble of the NPRM. Moreover, we do not believe that any change to the regulations themselves is necessary because § 206.31(a) refers only to the Secretary considering the applicant's experience in implementing an expiring HEP project; it does not use the phrase “for the priority”.

Changes:

None.

Federal TRIO Programs—34 CFR Parts 642 (Training Program for Federal TRIO Programs), 643 (Talent Search), 644 (Educational Opportunity Centers), 645 (Upward Bound Program), 646 (Student Support Services Program), 647 (Ronald E. McNair Postbaccalaureate Achievement Program)

Section 403(a) of the HEOA amended section 402A of the HEA to include a number of new requirements that apply across the Federal TRIO programs (

i.e.,

the Talent Search (TS), Upward Bound (UB), Student Support Services (SSS), Ronald E. McNair Postbaccalaureate Achievement (McNair), Educational Opportunity Centers (EOC), and Staff Development Activities (Training) programs). Additionally, section 403(b) through (g) of the HEOA amended sections 402B, 402C, 402D, 402E, 402F, and 402G, to make specific changes to the TS, UB, SSS, McNair, EOC, and Training programs, respectively.

We have organized the discussion of comments received on and responses to the proposed changes to the specific Federal TRIO program regulations by first addressing crosscutting issues by subject matter and then discussing program-specific issues on a program-by-program basis.

Our discussion of comments applicable to specific programs follows the order of the Department's regulations for those programs (

i.e.,

34 CFR parts 642 (Training), 643 (TS), 644 (EOC), 645 (UB), 646 (SSS), and 647 (McNair)).

Number of Applications an Eligible Entity May Submit To Serve Different Campuses and Different Populations

Comment:

One commenter expressed concern that an applicant that submitted a TRIO Program grant application to provide services to one of the different populations identified by the Secretary in the

Federal Register

notice inviting applications for one fiscal year competition would be ineligible to submit an application for a new grant award to continue the existing project if the population served by the existing project was not designated as an eligible population in the notice inviting applications for the next competition. The commenter suggested that the Department include language in the regulations to ensure that an applicant with an expiring grant will be eligible to apply for a new grant in a subsequent competition to serve the same population of students.

Discussion:

As part of the HEOA, Congress significantly revised the definition of “eligible population” in section 402A(h)(2) of the HEA. To implement this statutory change, the regulations specify that, for each competition, the Department will designate in the

Federal Register

notice inviting applications for the competition, the different populations for which an entity may submit a separate application (see §§ 642.7 (Training)

1

, 643.10(b) (TS), 644.10(b) (EOC), 645.20(b) (UB), 646.10(b) (SSS), and 647.10(b) (McNair).

1

For the Training Program, the

Federal Register

notice inviting applications will include the statutory and other priorities that applicants must address for the competition. Training program grantees will provide training on the topics identified in the published priorities.

Under these regulations, therefore, an entity that previously received a grant to serve a particular population would be eligible to submit an application for a new grant to continue serving the same population if that population is included as a designated population in the

Federal Register

notice inviting applications for the new competition. If the population served by the grantee is not designated for the new competition, the entity would not be eligible to apply for a grant to continue to serve the same population it served under the expiring grant. While an entity with an expiring grant serving another population could apply for a grant to serve one of the populations designated in the notice inviting applications for the new competition, the entity would not be eligible for PE points based on its expiring grant.

Changes:

None.

Designating Different Populations in the Federal Register Notice Inviting Applications

Comment:

One commenter questioned whether designating different populations for each competition was consistent with the TRIO programs' goals. The commenter believed that this approach would politicize the application process because it would force applicants to constantly change the focus of their projects to meet the changing requirements of the times. Ultimately, the commenter expressed concern that the proposed approach would destabilize the programs because it would reduce the effectiveness of the grantees.

Discussion:

We do not agree that the designation of different populations to be served for each competition will politicize the application process or reduce the effectiveness of the TRIO programs because most of the projects funded under any competition will be for traditional TRIO projects (

i.e.,

projects that provide services to eligible participants—low-income, first-generation college students, and students with disabilities—but that do not focus services on a specific population). For example, during the FY 2010 SSS grant competition only a small percentage of the applicants proposed projects to serve different populations that had distinct needs for specialized services that could not be addressed through a regular SSS project. As discussed in the NPRM, 75 FR at 13821-22, the designation of different populations for each competition will give the Department the flexibility to address changing national needs and to ensure that Federal funds are targeted to areas or populations most in need. The Secretary believes that it is appropriate to change the focus of the TRIO programs if the national needs change. That said, this does not mean that the Department will change the designated populations for each new competition.

Changes:

None.

Clarification of the Term “Designated Different Population”

Comment:

One commenter asked for clarification regarding what qualifies as a designated different population.

Discussion:

Section 402A(c)(5) of the HEA, as amended by section 403(a)(2)(C) of the HEOA, provides that the Secretary may not limit the number of applications submitted by an eligible entity under any Federal TRIO program if the additional applications describe programs serving different populations or different campuses. Section 402A(h)(2) of the HEA defines “different population” as a group of individuals that an eligible entity desires to serve using a Federal TRIO grant and that is separate and distinct from any other population that the entity has applied to serve, or that, while sharing some of the same needs as another population, has distinct needs for specialized services. The definition sections of each of the TRIO program regulations will include the new statutory definition for “different population” for each program to which the term applies. In addition, each of the TRIO program regulations provide that the Secretary will designate, in the

Federal Register

notice inviting applications and other published application materials for each competition, the different populations for which an eligible entity can submit separate applications. Therefore, what qualifies as a designated different population for each grant competition will be determined by the Department and described in the

Federal Register

notice inviting applications for that competition. For example, under the FY 2010 SSS grant competition, the Secretary designated projects that serve five different populations: Individuals with disabilities, individuals for whom English is a second language, individuals pursing science, technology, engineering and math disciplines, individuals pursuing teacher preparation, and individuals pursuing health sciences.

Changes:

None.

Definitions Applicable to More Than One Federal TRIO Program Definition of Financial and Economic Literacy (§§ 643.7, 644.7, 645.6, 646.7, 647.7)

Comment:

One commenter suggested that providing education or counseling services designed to improve financial and economic literacy should be a required service for all TRIO programs. Multiple commenters noted that EOC projects do not have enough time or resources to provide education or counseling services to improve participants' knowledge about all of the examples of personal financial decision-making listed in the definition of

financial and economic literacy.

Discussion:

Under these regulations, all Federal TRIO programs—other than the Training program—include as a mandatory or permissible activity providing education or counseling services designed to improve the financial and economic literacy of participants (see §§ 643.4(a)(6) TS),

2

644.4(e) (EOC), 645.11(a)(6) (UB), 646.4(a)(4) (SSS), and 647.4(b)(1) (McNair)). The definition of

financial and economic literacy

is consistent across programs. We intended the proposed definition to include a non-exhaustive list of examples of the types of knowledge that comprise knowledge about personal financial decision-making. We have made minor changes to this definition to make clear that the list of examples is not exhaustive and is not a list of mandatory activities.

2

In the case of the TS program, projects must provide connections for participants to education or counseling services designed to improve the financial and economic literacy of the participants or the participants' parents, including financial planning for postsecondary education.

Changes:

For clarity we have changed the phrase “including but not limited to” to “which may include but is not limited to” in order to emphasize that the list of types of knowledge that may constitute knowledge about personal financial decision-making is not exhaustive and is not a list of mandatory activities.

Comment:

A number of commenters recommended changes to the language used for some of the examples included in the definition of the term

financial and economic literacy.

One commenter suggested changing the reference to “secondary education” in § 646.7 (SSS) to “postsecondary education”. Other commenters suggested that we add the term “postbaccalaureate” after the reference to “postsecondary”, that we change the words “scholarship, grant and loan education” to “financial assistance education,” and that we include the word “assistanceships” in the definition of

financial and economic literacy.

Discussion:

We generally agree with these requested changes because we believe that they help to clarify the types of knowledge one should have to be financially and economically literate. Therefore, we have revised §§ 643.7, 644.7, 645.6, 646.7, 647.7 to make these changes. With respect to the request to add the words “financial assistance education,” we agree with the concept behind the comment but believe it is more appropriate to refer to “financial assistance” because it is knowledge about financial assistance, not financial assistance education, that is relevant.

Changes:

In the definition of

financial and economic literacy

in § 646.7 (SSS), we have changed the reference to “secondary education” to “postsecondary education”. In addition, in the definition of

financial and economic literacy

included in the regulations for the TS, EOC, UB, and McNair programs, we have added the term “postbaccalaureate” after the reference to “postsecondary”, replaced the words “scholarship, grant and loan education” with the words “financial

assistance,” and included “assistanceships” as an example.

Definition of Homeless Children and Youth (§§ 642.6, 643.7, 644.7, 645.6, 646.7)

Comment:

Multiple commenters asked for clarification of the definition of “youth”. These commenters stated that the McKinney-Vento Homeless Assistance Act defines the age of children and youth as ending prior to being college aged. The commenters expressed concern that this definition would limit the services that TRIO programs could offer to these students. One commenter asked if homeless children and youth will be a separate group of eligible participants like first-generation or low-income students.

Discussion:

The McKinney-Vento Act defines “homeless children and youths” in terms of what qualifies the individual as homeless, not by age.

3

Therefore, there is no cut-off age for the definition of “youth” in the McKinney-Vento Homeless Assistance Act.

3

Subtitle B of Title VII of the McKinney-Vento Homeless Assistance Act defines “homeless” as follows:

The term “homeless children and youths”—

(A) Means individuals who lack a fixed, regular, and adequate nighttime residence (within the meaning of section 103(a)(1)); and

(B) includes—

(i) children and youths who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; are living in emergency or transitional shelters; are abandoned in hospitals; or are awaiting foster care placement;

(ii) children and youths who have a primary nighttime residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for human beings (within the meaning of section 103(a)(2)(C));

(iii) children and youths who are living in cars, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, or similar settings; and

(iv) migratory children (as such term is defined in section 1309 of the Elementary and Secondary Education Act of 1965) who qualify as homeless for the purposes of this subtitle because the children are living in circumstances described in clauses (i) through (iii).

Those TRIO programs that provide pre-college programs assist students who are individuals covered by the definition of homeless children and youth in the McKinney-Vento Homeless Assistance Act. In the SSS program, however, assistance for securing temporary housing during breaks in the academic year may be provided to students who are homeless children and youths or formerly homeless children or youths (see § 646.30(j)).

Finally, while section 402A(c)(6) of the HEA requires TRIO projects, as appropriate, to make services available to homeless children and youths, homeless children and youths are not a separate group of eligible participants. Therefore, homeless children and youths are only eligible if they also meet the program's participant eligibility criteria (e.g., low-income, first-generation).

Changes:

None

Definition of Individual With a Disability (§§ 642.6, 643.7, 644.7, 645.6, and 646.7)

Comment:

Multiple commenters requested that we broaden the definition of the term

individuals with disabilities

to mirror the language used in the Americans with Disabilities Act (ADA). Another commenter requested clarification on whether the inclusion of the term “individual with disabilities” means that a student with a documented disability or individualized education plan could participate in a TRIO project even if he or she does not meet one of the other eligibility criteria.

Discussion:

The ADA, as revised by the ADA Amendments Act of 2008, defines the term “disability” to mean, with respect to an individual, (A) a physical or mental impairment that substantially limits one or more major life activities of such an individual, (B) a record of such an impairment or (C) being regarded as having such an “impairment.” This definition also applies under Section 504 of the Rehabilitation Act of 1973, as amended (Section 504). We agree that it is appropriate to use a definition of an individual with a disability that incorporates the ADA's definition of “disability.” Accordingly, we have changed the definition of

individual with disabilities

to be a definition of the term

individual with a disability

and we define

individual with a disability

to mean a person with a disability, as that term is defined in section 12102 of the ADA (42 U.S.C. 12101

et seq.

).

With respect to the comment seeking clarification on whether the inclusion of the term individual with disabilities in these regulations means that a student with a documented disability or individualized education program could participate in a TRIO project even if he or she does not meet one of the other eligibility criteria, we note that—except under the SSS program—being an individual with a disability is not a separate and additional eligibility criterion, such as being a first-generation or low-income student. Therefore, under all but SSS, being an individual with a disability does not, on its own, make an individual eligible to participate in a TRIO project. It is important to note that adopting the ADA's definition of an individual with a disability does not mean that grant funds under these programs may be used to pay for services required by the ADA that are not directly related to the goals of the TRIO programs. However, this prohibition would not relieve the institution of their obligations under the ADA or Section 504. For example, it would not be appropriate to use SSS program funds to pay for a sign language interpreter for a student who is hard of hearing to participate in his or her Calculus class as required by the ADA or Section 504.

Changes:

In §§ 642.6, 643.7, 644.7, 645.6, and 646.7 of the final regulations, we define

individual with a disability

to mean a person with a disability, as that term is defined in section 12102 of the ADA (42 U.S.C. 12101

et seq.

).

Definition of Veteran (§§ 643.7, 644.7, and 645.6)

Comment:

One commenter suggested that the proposed definition of veteran be modified to include National Guard veterans who served on active duty in Iraq and/or Afghanistan given that a large number of these individuals were called to duty in Iraq and Afghanistan and served for long tours of duty.

Discussion:

National Guard veterans who served on active duty in Iraq and/or Afghanistan are included in the definition of veteran. These individuals qualify as veterans under the last two paragraphs of that definition (

i.e.,

the individual was a member of a reserve component of the Armed Forces of the United States and was called to active duty for a period of more than 30 days, or the individual was a member of a reserve component of the Armed Forces of the United States who served on active duty in support of a contingency operation on or after September 11, 2011).

Changes:

None.

Evaluating Prior Experience—Outcome Criteria Definition of “High Quality Service Delivery” (§§ 642.20(b), 643.20(a)(2)(i), 644.20(a)(2)(i), 645.30(a)(2)(i), 646.20(a)(2)(i), 647.20(a)(2)(i))

Comment:

Several commenters expressed concerns about the proposed regulations that would provide that the Secretary would consider an applicant's prior experience of “high quality service delivery” in deciding which new grants to make. Some commenters recommended that the phrase “high quality service delivery” be defined to provide projects with clear expectations and performance standards. Other commenters stated that, because the phrase “high quality service delivery” is

not defined, it should not be included in the regulations. One commenter argued that because project performance data is strictly quantitative in nature, a determination of a grantee's quality of service cannot be made.

Discussion:

We disagree with the commenters' suggestion that the term “high quality service delivery” needs to be defined in the regulations. We also disagree that a grantee's quality of service cannot be determined based on project performance. As stated in section 402A(f)(1) of the HEA and in these regulations, the determination of an applicant's prior experience of “high quality service delivery” will be based on the outcome criteria for the specific program. Therefore, a grantee that met or exceeded its approved project objectives for its expiring grant would be considered to have delivered high quality services. The Department will use data provided by the grantee in the APR, as well as audit findings, site visit reports, and any other information received by the Department to determine if the grantee met or exceeded these objectives.

Changes:

None.

Comment:

None.

Discussion:

In reviewing proposed §§ 643.20(a)(2)(i), 644.20(a)(2)(i), 645.30(a)(2)(i), 646.20(a)(2)(i), 647.20(a)(2)(i)), we determined that it would be clearer to have these sections refer to “outcome criteria” rather than to “criteria” only. This change aligns the regulatory language more closely with section 402A(f) of the HEA, which refers to the specific outcome criteria to be used to determine an entity's prior experience (PE) points under the TS, UB, SSS, McNair, and EOC programs.

Changes:

We have amended §§ 643.20(a)(2)(i), 644.20(a)(2)(i), 645.30(a)(2)(i), 646.20(a)(2)(i), 647.20(a)(2)(i)) by adding the word “outcome” before the word “criteria”.

Comment:

None.

Discussion:

Upon further review of §§ 643.20(a)(2)(i), 644.20(a)(2)(i), 645.30(a)(2)(i), 646.20(a)(2)(i), we determined that technical changes were needed in these sections. Because the HEA now permits entities to submit multiple applications to serve different populations, campuses, or both, it is important that the regulations clarify the conditions under which an entity may receive PE points for applications for new grants (depending on whether the new grant will serve the different populations, campuses, or both served under an expiring grant). The Department has revised these regulations to clarify that PE points are awarded only to the application for a new grant that proposes to continue to serve substantially the same populations

and

campuses that the applicant is serving under an expiring grant. Therefore, an entity will not receive PE points for (a) applications to serve different populations, even if the different populations are on the same campus as the population or populations served by the existing grant, or (b) applications to serve a different campus altogether.

Changes:

We have amended §§ 643.20(a)(2)(i), 644.20(a)(2)(i), 645.30(a)(2)(i), and 646.20(a)(2)(i) by replacing the word “or” after the words “same populations” with the word “and.”

Incorrect Annual Performance Report (APR) Data (§§ 642.22(a)(3), 643.22(a)(3), 644.22(a)(3), 645.32(a)(3), 646.22(a)(3), 647.22(a)(3))

Comment:

The Department received numerous comments on the proposed regulatory language that would permit the Secretary to adjust a PE score or decide not to award PE points if other information indicates that the APR data used to calculate the applicant's PE are incorrect. Several commenters requested that the regulations be revised to take into consideration projects that knowingly provide fraudulent information and those that act in good faith but inadvertently provide data containing errors, so that the Department does not penalize projects for honest mistakes. Several commenters stated that Department officials have acknowledged that numerous projects have made data errors in their APRs, and these commenters believe that it is in the best interest of the Department and the projects to work to correct these errors, rather than not to award PE points to these projects.

Discussion:

We understand the commenters' concern about data reporting errors potentially resulting in the loss of PE points for an applicant. The Department does not intend to use this authority to penalize applicants that make reporting errors despite their “good faith” efforts. However, because the Department cannot always tell whether an applicant intentionally provides false data or if the applicant made a mistake in data reporting, we believe it is appropriate for the Department to have the flexibility to address issues of concern in audit findings, site visits, or other information that identifies problems in a grantee's efforts to meet the established objectives on a case-by-case basis. For this reason, we decline to make any changes to the regulations to distinguish between projects that knowingly provide fraudulent information and those that act in good faith but inadvertently provide data containing errors.

Changes:

None.

Notification of PE Points Awarded (§§ 642.22, 643.22, 644.22, 645.32, 646.22, 647.22)

Comment:

Many commenters requested that the Department notify grantees of their PE points earned each project year within a certain amount of time (

e.g.,

60 to 90 days) after the end of the grant period. They also recommended that the Department provide relevant comments to grantees that score less than the maximum 15 PE points, to assist the grantees in improving their projects in future years.

Discussion:

We appreciate the commenters' suggestions on how to improve communication about project performance between the Department and grantees. The Department provides applicants with standardized objectives for the relevant TRIO program in the application materials for each TRIO competition. Applicants then must specify their performance targets, and grantees report on their progress in achieving approved objectives in their APR. At the conclusion of each competition, grantees receive a summary of the PE scoring by standardized objective for each of the three years assessed. Moreover, the APR for each program is designed so that grantees should be able to calculate their own annual PE scores. However, the Department will continue to perfect its assessment of PE and find ways to provide timely feedback to grantees on their projects' performance.

Changes:

None.

PE Points for Financial and Economic Literacy (§§ 642.22, 643.22, 644.22, 645.32, 646.22, 647.22)

Comment:

The Department received several comments recommending that PE points be granted for experience providing services to improve participants' financial and economic literacy as well as financial aid application support. Some commenters offered this recommendation for only a specific TRIO program. These commenters argued that services related to financial and economic literacy and financial aid support are required by the HEA, have been incorporated into certain of the TRIO programs' purposes, and are pivotal to helping participants prepare for college. Some commenters also noted that it makes sense to provide PE points for these services, because project staff spend a substantial amount of time engaged in these services.

Discussion:

The Secretary acknowledges that the HEA emphasizes the importance of providing or connecting participants to services related to improving a participant's financial and economic literacy. However, the HEA does not list this activity as one of the outcome criteria to be used for PE points. To remain consistent with the statute, which requires that the Secretary determine an entity's prior experience based on the statutory outcome criteria, the Secretary is not adding PE criteria not included in section 402A(f) of the HEA.

Changes:

None.

Timeline for Earning PE Points—Postsecondary Completion (§§ 643.22(d)(6) (TS), 645.32(e)(1)(vi) and (e)(2)(v) (UB))

Comment:

Several commenters sought clarification on the timeframe in which UB and TS grantees will be eligible to earn the PE points associated with meeting their approved objectives for postsecondary degree completion, particularly if the criterion is evaluated after the second, third, and fourth program years, given the length of time it typically takes a student to complete a postsecondary degree. Some commenters requested an explanation of whether participants under an entity's expired or expiring grant may be counted toward meeting approved objectives for this criterion. One commenter recommended that grantees earn PE points for this criterion based on either postsecondary academic progress (persistence) or completion.

Discussion:

We understand the commenters' concern that applicants may not be eligible for all the PE points available for each competition, due to the amount of time it takes to track enrollment in and completion of postsecondary education of the participants served in the applicants' expired or expiring grants. Under the UB program, some applicants would be eligible to earn PE points for participants they served under earlier grants who attain a postsecondary degree within the number of years specified in the approved objective. Because the Department has been collecting individual participant data through the UB APRs for several years, the Department will be able to match participant data from prior years to determine the extent to which UB participants completed programs of postsecondary education.

However, under the TS program, we have not been collecting data on the academic progress of TS participants through postsecondary completion as this is a new outcome criterion for this program. Therefore, the Department will not be able to match participant data from prior years to assess the extent to which TS participants completed programs of postsecondary education. Going forward, the Department will work with grantees to develop a new APR for the TS program that will capture the data needed to award PE points for postsecondary completion. The Department acknowledges that TS projects will not be eligible for the PE points for postsecondary completion for several years.

Finally, we have not accepted the commenter's suggestion that we award PE points under the postsecondary completion criteria based on the extent to which project participants were either still persisting in or had completed a program of postsecondary education because the requirement of the HEA is postsecondary completion, not progress or completion.

Changes:

None.

Years Considered in PE Assessment (§§ 643.20(a)(2)(iii), 644.20(a)(2)(iii), 645.30(a)(2)(iii), 646.20(a)(2)(iii) 647.20(a)(2)(iv))

Comment:

Multiple commenters expressed concern regarding the proposed regulation that would provide that the Secretary will designate in the

Federal Register

notice inviting applications and other published application materials for a competition which three years of the expiring five year grant period will be considered in the PE assessments for new awards. Several commenters stated that the regulations should specify which three years will be used, while a few others suggested clarifying that the middle three years (

i.e.,

years two through four) of the grant cycle would be considered. These commenters contended that including this information in the regulations would reduce confusion among grantees as to the timeframe evaluated for purposes of determining PE points. One commenter recommended using data for the four years preceding the date of application for the new competition. This commenter noted that such an approach would be consistent with the Department's current system in which the average rates of achievement for the preceding three years are used. Similarly, other commenters had concerns that the proposed use of three years of project data will fail to take into consideration two project years' worth of a project's performance.

Discussion:

The HEA now provides that all TRIO grants will be awarded for five years, but the Secretary has determined that PE points should be assessed for only three of the five year project period. In making this determination, the Secretary took several factors into consideration. First, the Department's experience has demonstrated that, for a number of reasons, many first-time or new grantees do not meet their approved objectives for the first year of funding. Not using the first year of the grant cycle for PE points, therefore, will give new grantees time to effectively implement the project prior to having its performance evaluated for purposes of assessing PE. Second, evaluating performance from the last year of a project period to determine PE points for new awards presents a number of challenges. Applications for new grants are due about a year prior to the end of the current grant period and new awards are announced several months prior to the end of the grant period. Thus, it is not possible to consider a project's performance in the fifth year of an expiring grant prior to making funding decisions for the new grant competition because the APR data for the last year of the expiring grant would not be available for calculating PE points until several months after the new grant period begins.

For these reasons, we do not think it is appropriate or possible to use the first and fifth years of the expiring grant cycle to assess PE points for new competitions. Generally, we expect that the published application materials will designate the three middle years of the expiring grant (

i.e.,

project years two through four). However, designating the specific years to be considered in the application materials, rather than in the regulations, will give the Secretary flexibility to address unique situations on a competition-by-competition basis. For example, there may be situations when some grantees started their expiring grant period a year or more later than other grantees. In such a situation, the applicant's performance during the first three years, instead of the middle three years, of the expiring grant would be used to award PE points. The published application materials would designate the project years that would be used for PE (

e.g.,

2007-08, 2008-09, and 2009-10) for all applicants in the competition.

Changes:

None.

Use of Approved Versus Actual Number of Participants Served (§§ 645.32(d), 646.22(d), 647.22(d))

Comment:

Some commenters expressed concerns about the proposal that the Secretary will use the approved number of participants, or the actual number of participants served in a given

year if that number of participants is greater than the approved number, as the denominator in calculating whether the applicant has met its approved objectives under its expiring grant to earn PE points for the new grant application. A few commenters argued that a grantee who does not serve the approved number of participants is penalized in two ways: First, by not receiving PE points for the criterion measuring whether the approved number was served, and, second, by not receiving any PE points at all if at least 90 percent of the approved number was not served. These commenters stated that using the approved number instead of actual number as the denominator in PE calculations is unnecessarily punitive. Furthermore, one commenter recommended that either the actual number of participants should be used as the denominator or the number of PE points associated with serving the approved number of participants should be reduced. This commenter argued that the number of points assigned to this criterion, combined with the proposed use of the approved number as the denominator, makes the penalty for projects that do not serve their approved number too severe. The commenter stated that this concern particularly applies to small projects, for which the commenter notes that one or two students can affect an objective by two or more percentage points.

Discussion:

Grant award amounts and performance targets are based largely on the number of participants a project is funded to serve each year of the grant period. Therefore, we believe that, for those PE criteria applicable to all participants served in the project year, the denominator should be the greater of the approved number of participants to be served or the actual number of participants served. PE points are rewards, and give projects a competitive advantage in a subsequent grant competition. Therefore, it is reasonable to expect a grantee to meet the performance targets it proposed and that were approved through the grant process to earn the maximum number of PE points. Therefore, we do not accept the commenters' suggestion not to use the approved number as the denominator for calculating PE points for some objectives or to reduce the PE points a project can earn for serving its approved number of participants.

Changes:

None.

PE Criterion Related to Number of Participants (§§ 642.22(d) and (e)(1); 643.22(c) and (d)(1); 644.22(c) and (d)(1); 645.32(c), (e)(1)(i), and (e)(2)(i)); 646.22(c) and (e)(1); 647.22(c) and (e)(1))

Comment:

Several commenters expressed concern that the phrase “approved number of participants” in the proposed regulations means that a grantee would not receive PE points if the project served more than their approved number of participants. These commenters argued that it is difficult to ensure that a project only serves the exact number of participants that were proposed, as projects often accept more participants than they are funded to serve to ensure that at least the minimum number is met throughout the year. Two commenters further noted that the phrase “met or exceeded the entity's objectives” is used in several areas of the HEOA, suggesting that the spirit of the law is for projects to serve at least the funded number. Several commenters requested that the criterion be revised to reflect that the Department will examine whether the applicant provided services to “at least the approved number of participants” or to “no less than the approved number of participants.”

One commenter suggested that PE points for serving the approved number of participants should be commensurate with the percentage of the approved number that was served. Two commenters suggested that the regulatory provision that states that the Secretary does not award PE points to a grantee that does not serve at least 90 percent of the approved number of participants conflicts with the separate regulatory provision that states that the Secretary does not award PE points for the criterion measuring whether the grantee served the approved number if the approved number is not served.

Discussion:

The Department agrees that the use of the words “approved number” in the “Number of participants” PE criterion regulations may be confusing. We did not intend for this provision to imply that a project could not serve more than the approved number of participants. Therefore, we have accepted the commenters' recommendations to revise the regulatory language to make it clear that a project can serve more than the approved number of participants.

We note, however, that for a grantee to receive PE points for this criterion, the project must meet or exceed the approved number that it has been funded to serve; no partial credit will be given for this criterion to a grantee that served fewer than the approved number.

The commenters' concern that the PE criteria conflict with each other is based on a misunderstanding. The two criteria are complementary. First, to be eligible to receive

any

PE points for a given year, a grantee must have served at least 90 percent of the participants it was funded to serve. For example, if a project was funded to serve 100 participants but only served 85 participants (85 percent of the approved number), the grantee would receive no PE points for that project year because it did not serve at least 90 percent of its funded number. Second, if a grantee serves at least 90 percent of the number of participants it was funded to serve but did not serve 100 percent of the approved number of participants (

e.g.,

project was funded to serve 100 participants but only served 98 participants), the grantee would not receive any points for the “Number of participants” criterion. However, the grantee would be eligible to earn up to 12 PE points based on whether or not the project achieved its other PE objectives.

Changes:

We have amended §§ 642.22(d); 643.22(c); 644.22(c); 645.32(c); 646.22(c); 647.22(c)) to clarify that the Secretary does not award PE points if the applicant did not serve at least the approved number of participants. In addition, we have amended the

Number of participants

criterion in §§ 642.22(e)(1), 643.22(d)(1), 644.22(d)(1), 645.32 (e)(1)(i) and (e)(2)(i); 646.22(e)(1); and 647.22(e)(1) to clarify that the award of PE points for that criterion is based on whether the applicant provided services to no less than the approved number of participants.

Review Process for Unsuccessful Federal TRIO Program Applicants Percentage of Funds Set Aside for Secondary Review Competition (§§ 642.25(d) (Training), 643.24(d) (TS), 644.24(d) (EOC), 645.35(d) (UB), 646.24(d) (SSS), and 647.24(d) (McNair))

Comment:

Several commenters requested clarification of some of the procedures and processes proposed for the second review of unsuccessful grant applications. Several commenters wanted to know the percentage of competition funds that would be reserved for the second review or how the Department would determine the percentage of funds set aside for grants after the second review. Commenters also expressed concern that some of the funds reserved for awards after the second review might not be awarded and recommended that the regulations

be modified to allow for and explain the equitable disbursement of unused reserved funds.

Discussion:

To implement the new statutory requirement that unsuccessful applicants may request a second review of their applications under certain conditions, the Department proposed and, through these final regulations, adopts a two-slate process. After the peer review of applications and the awarding of PE points, as applicable, the Department will rank all the applications. The Department then will establish a funding band to determine the percentage of the total funds allotted for the competition that will be set aside for the second review (for example, we might set aside six percent of the total funds allotted for the competition). The determination of the percentage of funds to be reserved for the second review and the applications to be included in the funding band will be based on the distribution of application scores. For example, we expect to include in the funding band all applications that scored within two or three points below the initial cut-off score.

The funding band for each competition will include all of the applications with a rank-order score that is below the lowest score of applications funded after the first review and that would be funded if the Secretary had 150 percent of the funds that were set aside for the second review (

e.g.

nine percent of funds).

The first slate of new awards will be made based on the rank-order of the applications using the amount of funds available for the competition minus the amount of funds set aside for the second review of unsuccessful applications (

e.g.,

six percent).

Only those unsuccessful applicants whose applications scored within the funding band will be eligible for the second review. In addition, those applicants eligible for the second review will have to provide evidence demonstrating that the Department, an agent of the Department, or a peer reviewer made an administrative or scoring error (as defined in the regulations) in the review of its application.

If the Department determines that there was an administrative error in the review of an application (which includes mathematical errors in the calculation of PE points or assigning the earned PE points or the peer reviewers' scores to the wrong application) the Department will correct the error and adjust the score assigned to the application as appropriate. If the adjusted score assigned to the application would place the application above the cut-off score for funding under the first slate, the application will be funded (if funds are available) prior to the re-ranking of applications based on the second peer review of unsuccessful applications.

If there is an error in how the peer reviewers scored an application (see §§ 642.25(b)(3) (Training); 643.24(b)(3) (TS); 644.24(b)(3) (EOC); 645.35(b)(3) (UB); 646.24(b)(3) (SSS); and 647.24(b)(3) (McNair)), a second peer review panel will review the application. After all of the second reviews are completed, a second rank-order slate of applications in the funding band will be prepared. The rankings in the second slate will be based on the new reviewers' score for those applications that were read by a second peer review panel; any applicant in the funding band that did not request or receive a second review will be ranked based on its original score. Applications in the funding band will be funded based on the second rank order slate until all the available funds are committed.

The decision to use a funding band and the specific parameters for the funding band are based on the Department's experience. In the past, adjustments for administrative and scoring errors have resulted in a score increase of no more than two or three points; therefore, under these regulations, the funding band will include only those applications that have a reasonable chance of being funded if the second review of the application resulted in an adjustment to the score. By selecting those applications with an original score that is most likely to have a chance of being funded after a second review, the Department will be better able to effectively manage the grant competition and make timely funding decisions.

The funding band approach to the second review process ensures that eligible applicants have a meaningful opportunity to request a second review while ensuring that the Department can provide timely notice of grant awards.

It is important to note that not every application selected for inclusion in the funding band will be awarded a grant. As discussed elsewhere in this preamble, we will put aside an appropriate amount of funds for grants awarded after the second review, but those funds will not be sufficient to provide funding for all applicants in the funding band. However, this process will ensure that we obligate all of the funds available for new grants and that there is no lapse of funds.

Changes:

None.

Number of Days To Prepare and Submit a Written Request for a Second Review (§§ 642.25(c)(5) and (6)(Training), 643.24(c)(5) and (c)(6)(TS), 644.24(c)(5) and (c)(6) (EOC), 645.35(c)(5) and (c)(6) (UB), 646.24(c)(5) and (c)(6) (SSS), and 647.24(c)(5) and (c)(6) (McNair))

Comment:

Several commenters recommended that the Department revise the proposed regulations by increasing the 15 calendar days to prepare a written request for a second review to 30 to 45 calendar days. These commenters stated that 15 days is not enough time for unsuccessful applicants to receive and review the reader's evaluations and prepare an appropriate request for a secondary review to the Department. Five commenters expressed concern that the amount of time it takes to deliver and receive mail, especially for applicants in the Pacific, would reduce the amount of time applicants would have to respond and request a secondary review. Other commenters gave examples of circumstances that could interfere with an applicant's ability to respond within the proposed 15 day period, such as the need to get appropriate signatures, delays resulting from the institution being closed for vacations or furloughed days, or delays in getting the peer reviewers' comments and the assessments of PE points. Another commenter suggested that the Department provide a grantee with its PE score annually to provide more time in which to do the research needed to appeal the assigned PE score. One commenter also noted that the regulations seemed contradictory in providing that the applicant will have 15 calendar days to submit a written request but then also stating that the written request for a second review must be received by the Department by the due date and time established by the Secretary.

Discussion:

We understand the time constraints institutions may face in submitting their request for a second review and supporting information in a timely manner. However, the statutory requirement for a second review process adds several new steps to the competition schedule. Consequently, we must compress many stages of the competition to incorporate these new procedures into the competition schedule so that we meet our legal obligation to commit all appropriated funds by the end of the fiscal year.

The Department will establish internal procedures to ensure that applicants in the funding band receive at least 15 days after receiving notification that their applications were not funded in which to submit a written

request for a second review. At the time of notification, these applicants will receive copies of the peer reviewers' written evaluations and, if applicable, a report detailing how the PE score was calculated. We will use multiple notification methods (

e.g.,

electronic mail, overnight mail) to ensure applicants will have at least 15 days from receipt of the notification in which to respond. Applicants will also be permitted to submit their responses electronically. Further, our Web site will provide applicants with updated information as to when funding decisions might be announced and the proposed schedule for the second review so applicants can ensure that staff are available to prepare a request for a second review, if appropriate.

In establishing a due date and time for receipt of the applicant's written request for a second review, the Department will give applicants at least 15 days in which to respond.

Changes:

We have amended §§ 642.25(c)(5), 643.24(c)(5), 644.24(c)(5), 645.35(c)(5), 646.24(c)(5), and 647.24(c)(5) to clarify that unsuccessful applicants who are within the funding band will have at least 15 calendar days in which to submit a written request for a second review.

Technical or Administrative Errors (§§ 642.25(a)(3) (Training), 643.24(a)(3) (TS), 644.24(a)(3) (EOC), 645.35(a)(3) (UB), 646.24(a)(3)(SSS), and 647.24(a)(3) (McNair))

Comment:

Three commenters suggested that if a technical or administrative error by the Department or a peer reviewer results in an application not being reviewed, the applicant should automatically receive a grant even if program funds are not available.

Discussion:

We cannot accept the suggestion made by the commenters. If correcting a technical or administrative error results in the application receiving a score above the cut-off score for funding under the first slate, the application would be funded prior to the re-ranking of applications based on the second peer review of unsuccessful applications. Therefore, we do not anticipate a situation in which funds would not be available to fund these applications. However, we do not have the legal authority to commit funds that we do not have and the regulations must include the statement “provided funds are available”.

Changes:

None.

Criteria for Scoring Errors on Applications That Were Reviewed (§§ 642.25(b)(3) (Training), 643.24(b)(3) (TS), 644.24(b)(3) (EOC), 645.35(b)(3) (UB), 646.24(b)(3)(SSS), and 647.24(b)(3) (McNair))

Comment:

One commenter argued that the criteria proposed in the regulations for demonstrating scoring errors in the evaluation of the application are too narrow and should include other criteria that take into account possibilities such as human error on the part of the reader. Another commenter asserted that the reader's professional judgment should be considered as a type of scoring error in determining whether or not an application is eligible for a secondary review. This commenter expressed the opinion that readers do not have the appropriate knowledge to adequately judge whether or not an applicant can meet the objectives set forth in the application. Another commenter was concerned about readers who may misread or misinterpret information provided in the application.

Discussion:

We do not agree with these comments. We believe that the regulations appropriately define the type of error that should be considered a technical, administrative or scoring error and would warrant a second review of an application. We disagree with the suggestion that the professional judgment of the peer reviewers should be subject to review as a scoring error. The HEA requires that each application be reviewed by a panel of non-Federal peer reviewers. These experts have programmatic knowledge and experience in serving low-income, first-generation students and in administering student assistance programs. As required by Congress, we rely on their expertise to make judgments about the quality of the applications under review. The readers appropriately exercise their judgment in providing scores on the applications and a low score is not evidence of an error by the reviewer. We also do not agree that the reader's interpretation of an application should be a basis for review. It is the applicant's responsibility to make sure the information provided in the application is clear and understandable.

Changes:

None.

Timely Notification of Applications Determined To Be Ineligible Because of a Technical or Administrative Error (§§ 642.25(a) (Training), 643.24(a) (TS), 644.24(a) (EOC), 645.35(a) (UB), 646.24(a) (SSS), and 647.24(a) (McNair))

Comment:

One commenter asserted that the regulations should require the Secretary to provide timely notification to an applicant whose application was not reviewed because it was determined to be ineligible, so that the applicant would have sufficient time to appeal the decision prior to the conduct of the peer review process.

Discussion:

To the extent feasible, the Department notifies applicants who were determined to be ineligible in writing prior to the start of the peer review of applications or as soon as possible thereafter. Under these regulations, if it is determined that the Department or the Department's agent made a technical or administrative error, as defined in the regulations, in making that determination the application will be evaluated and scored. If the total score assigned the application would have resulted in the funding of the application during the competition and the program has funds available, the application will be funded prior to the re-ranking and funding of applications after the second review.

Changes:

None.

Final Decision (§§ 642.25(e) (Training), 643.24(e) (TS), 644.24(e) (EOC), 645.35(e) (UB), 646.24(e) (SSS), and 647.24(e) (McNair))

Comment:

Two commenters expressed concern that scoring errors also could occur during the secondary review process. For this reason, the commenters suggested that applicants be allowed to appeal the decision of the secondary review process.

Discussion:

The Secretary disagrees with the suggestion that an applicant should be permitted to appeal the decision of the secondary review process. The second review provides a formal process for addressing scoring errors made during the first review that might impact the funding of an application. Appealing the decision of the second review is beyond the requirements of the statute and would interfere with the timely awarding of grants under the competition.

Changes:

None.

Eliminate the Second Review (§§ 642.25 (Training), 643.24 (TS), 644.24 (EOC), 645.35 (UB), 646.24 (SSS), and 647.24 (McNair))

Comment:

One commenter requested that we remove from the regulations the

entire section on the review process for unsuccessful applicants because it would increase the Department's administrative burden and would increase administrative costs, resulting in fewer projects being funded and fewer students being served.

Discussion:

The HEA requires the creation of the second review process for unsuccessful applications. The Department does not have the authority to eliminate this statutorily required process.

Changes:

None.

Training Program for Federal TRIO Programs (34 CFR part 642) What is the Training Program for Federal TRIO Programs? (§ 642.1)

Comment:

One commenter expressed concern that it is difficult for Training Program grantees to meet the minimum requirements for the number of TRIO professionals that they must train. The commenter suggested making awards in a way that allows grantees to structure training sessions to be more focused, such as training for specific programs (

e.g.,

for only Upward Bound staff or Talent Search staff), only new directors or staff, or only seasoned staff, to reduce the competition among grantees for the same audiences. In addition, the commenter urged the Department to ensure that TRIO professionals are able to take advantage of training opportunities by requiring directors to send staff to the trainings.

Discussion:

Section 402G(b) of the HEA requires Training Program grantees to offer training annually for new directors of TRIO projects as well as annual training on topics specified in the statute and other topics chosen by the Secretary. If grantees are offering training to the same audiences and are unable to attract appropriate numbers of participants, rather than changing the requirements on the number of project staff a Training grant must serve, the Secretary may consider reducing the number of grants available under this program while still ensuring that training is available throughout the Nation. Although the Secretary hopes that TRIO professionals will be able to take advantage of these training opportunities, the Secretary does not want to require their participation. It is the responsibility of each TRIO director to determine which staff could benefit from the offered training and how much of the project budget should be used for this purpose and to make decisions about staff participation in trainings under the TRIO Training program accordingly.

Changes:

None.

What activities does the Secretary assist? (§ 642.11)

Comment:

One commenter suggested that the Department remove the requirement that Training Program projects offer training covering strategies for recruiting and serving hard-to-reach populations, as reflected in § 642.11(b)(5). The commenter maintained that it does not make sense to include this requirement because some of the TRIO programs, such as McNair and Upward Bound Math-Science (UBMS), are not required to serve these populations. The commenter suggested that the Department make this a permissible training topic that could be combined with other topics.

Discussion:

In section 402G(b)(5) of the HEA, as amended by section 403(g) of the HEOA, Congress added training on strategies for recruiting and serving hard to reach populations to the list of required training that must be offered annually. Therefore, we do not have the authority to remove this requirement or to make it a permissive topic. The

Federal Register

notice inviting applications will provide applicants with additional guidance regarding the types of TRIO staff that should be offered training on this topic.

Changes:

None.

How does the Secretary evaluate an application for a new award? (§ 642.20)

Comment:

One commenter suggested that, in making awards under the Training Program, the Department should take into consideration the diversity of training topics and the opportunities for TRIO professionals to attend training. The commenter also suggested that the Secretary make only one award for each major training topic to ensure that comprehensive training is available for TRIO staff.

Discussion:

For each competition for grants under the Training Program, the notice inviting applications will identify the training priorities (from the list of priorities in § 642.24) for the competition and the expected number of Training projects to be funded under each priority. Under section 402G(b) of the HEA, training must be offered each year for new project directors and for each of the topics listed in paragraphs (b)(1) through (b)(5) of that section and in § 642.11. The required topics provide the appropriate diversity and opportunities for training.

Changes:

None.

What are the Secretary's priorities for funding? (§§ 642.7 and 642.24)

Comment:

None.

Discussion:

Upon further departmental review of § 642.7 and newly redesignated § 642.24, we have determined that the provisions should be clearer with regard to the implementation of the Secretary's authority to select and designate training priorities. Proposed § 642.7 stated that an applicant may submit more than one application for Training grants as long as each application described a project that addresses a different absolute priority designated in the

Federal Register

notice inviting applications. The absolute priorities are from the list of training priorities in newly redesignated § 642.24. We have made a change to § 642.24 to make this clearer. In addition, while § 642.7 states that the Secretary designates the absolute priorities in the

Federal Register

notice inviting applications, newly redesignated § 642.24, as proposed, did not include corresponding language. For the sake of clarity, therefore, we have added language to § 642.24 that states that the Secretary designates one or more of the priorities in § 642.24 in the

Federal Register

notice inviting applications for the competition.

Changes:

We have added language to § 642.7 to clarify that the absolute priorities designated in the

Federal Register

notice inviting applications are from the list of training priorities in § 642.24. We also have added paragraph (c) to newly redesignated § 642.24 to clarify that, for each competition, the Secretary designates one or more training priorities in the

Federal Register

notice inviting applications.

Comment:

Multiple commenters advocated expanding the Secretary's list of priorities for the Training Program to include additional priorities, such as the provision of counseling services designed to improve financial and economic literacy. The commenters argued that additional priorities should be included as priorities in § 642.24 to reflect the emphasis on these activities in the HEA.

Discussion:

Section 642.11(b) reflects the list of training topics required by section 402G(b) of the HEA. Section 642.24 reflects the Secretary's statutory authority to designate—in a notice inviting applications for a competition—one or more subjects as training priorities for grantees. In exercising the authority provided in § 642.24, the Secretary may consider the priorities suggested by the commenters for future competitions.

Changes:

None.

Talent Search (TS) Program (34 CFR Part 643)

The Secretary has changed the current TS Program regulations to implement

the changes made to the program by sections 403(a) and (b) of the HEOA. The HEOA made changes to the goals and purposes of the TS program through the addition of statutory outcome criteria and required activities. These HEOA changes require TS grantees to provide more intensive academic interventions than they have in the past.

As we discuss subsequently under the applicable sections of the regulations, the Department received many comments and questions about the new TS program requirements, particularly with regard to the requirements relating to a rigorous secondary school program of study. Numerous commenters expressed concerns that funding levels would be insufficient to provide the required services and activities to the number of students currently being served and recommended that, if additional funding were not available for TS, grantees should be permitted to reduce the number of students to be served. Some commenters suggested that the proposed regulations would require grantees to implement a two-tiered program of service delivery—the first tier would support participants completing a rigorous curriculum and the second tier would provide college preparatory education for those participants not taking a rigorous secondary school program of study.

The Department also received comments requesting additional guidance regarding the Department's expectations for the cost-effective delivery of services for students in a rigorous program of study.

As discussed in the NPRM, in light of the changes made to the HEA, the Department has removed from the regulations the requirement that a TS grantee must serve a specific minimum number of participants. Instead, the Secretary will identify the minimum number of participants a TS grantee must serve each year of a grant cycle in the

Federal Register

notice inviting applications for the grant competition. This approach will give the Department the flexibility to establish the minimum number of participants to be served based on the available resources and other priorities for each competition, and to adjust these numbers for subsequent competitions based on experience, changing priorities, and cost analyses.

Further, the Department acknowledges that some of the proposed regulations with regard to the rigorous program of study would impose a significant burden on grantees and could not be fully implemented without substantial increases in program funding or large reductions in the number of participants served. Therefore, as discussed in more detail in the following sections, we have revised many of the proposed regulations related to the rigorous program of study. For example, instead of requiring TS grantees to provide many of the services a participant may need to complete a rigorous program of study, the Department is encouraging all TS projects to work in a coordinated, collaborative, and cost-effective manner with the target schools or school system and other programs for disadvantaged students to provide TS participants with access to and assistance in completing a rigorous secondary school program of study.

The Department also plans to provide additional guidance to applicants on how to respond to the new program requirements and outcome criteria in the published application materials. In addition, the Department will conduct 10 pre-application workshops to assist persons interested in applying for TS grants and will post a list of frequently asked questions on the TRIO Programs Web site at:

http://www.ed.gov/about/offices/list/ope/trio/index.html.

What is the Talent Search program? (§ 643.1)

Comment:

Several commenters expressed dissatisfaction with the language that the Secretary proposed to add to this section. The commenters expressed concern that it appeared that the TS program is no longer focused on its historically targeted audiences of middle and high school students because TS projects are now expected to also “encourage” persons who have not completed postsecondary education to “complete such programs.” The commenters argued that working with persons to complete a program of postsecondary education is beyond the scope of the TS program.

Discussion:

We do not have the discretion to make the changes suggested by the commenters because the regulatory language at issue is required by section 402B(a)(3) of the HEA.

Changes:

None.

Who is eligible for a grant? (§ 643.2)

Comment:

Many commenters questioned the practicality or need to include secondary schools and community-based organizations as eligible grantees for the TS program and suggested that the regulations be modified to exclude these entities from being eligible applicants.

Discussion:

We cannot make the changes required by the commenters. Congress amended section 402A(b)(1) of the HEA to eliminate the limitation on the eligibility of secondary schools and to include community-based organizations in the definition of public and private agencies that are eligible for the TS program.

Changes:

None.

Who is eligible to participate in a project? (§ 643.3)

Comment:

Several commenters recommended that the regulations retain the requirement, reflected in current § 643.3(a)(3)(ii) that a participant have the ability to complete a program of postsecondary education. Some commenters requested that the participant eligibility requirements concerning individuals receiving support to complete a rigorous secondary school program of study be removed from § 643.3(b). A majority of the comments on § 643.3 concerned the requirement that an individual is eligible to receive support to complete a rigorous secondary school program of study only if the individual is accepted into the TS program by the end of the first term of the tenth grade. Some of these commenters recommended that this provision be changed to allow individuals who are accepted into the TS program by the end of the 10th grade academic year. Another one of these commenters suggested that identifying students for a rigorous secondary school program of study in the 9th grade presents a challenge due to the mobility and attrition issues that TS projects encounter, which make it difficult to identify a cohort of students to follow for four years. This commenter noted that projects in rural States, in particular, have these challenges because the number of schools in which services can be provided would be small. The commenter suggested that we amend the regulations to identify an overall percentage of the total number of high school students served by a project who will complete a rigorous secondary school program of study by the end of their senior year. Other commenters also stated that this provision was too restrictive and recommended that TS projects be given more flexibility to recruit, select, and provide additional services for students among all grade levels. Some commenters argued that using TS funds for a rigorous secondary school program of study is a misplaced priority and that funds would be better utilized providing services aimed at the 6th through 8th grade population.

Discussion:

We have not accepted the commenters' recommendation with regard to retaining § 643.3(a)(3)(ii) because we amended this provision to comply with the changes made by

section 403(b)(1)(B) of the HEOA to section 402B(a)(3) of the HEA.

However, in response to other comments, we have decided not to include in these final regulations the participant eligibility requirements for the rigorous secondary school program of study that were reflected in proposed § 643.3(b). We have been convinced by the commenters that this provision would have imposed a significant burden on grantees by adding additional participant eligibility criteria for those participants needing assistance in completing a rigorous secondary school program of study. Also, after considering the comments, we have decided that TS projects should encourage all participants, not just those in high school, to undertake a rigorous secondary school program of study and should coordinate and collaborate with the target schools or school system and other programs for disadvantaged students to provide all TS participants with access to and assistance in completing a rigorous secondary school program of study.

In response to the comment that using TS funds for a rigorous secondary school program of study is a misplaced priority and that funds would be better utilized providing services aimed at the 6th through 8th grade population, we note that section 402A(f)(3)(A)(iv) of the HEA now requires TS grantees to assist participants in completing a rigorous program of study; therefore, we require this assistance in the regulations. However, these final regulations reflect changes we have made to the proposed regulations that should help reduce the costs to the TS project of providing these services. Encouraging participants to pursue a rigorous program of study should be part of the services a TS project provides to participants in the 6th through 8th grades.

Changes:

We have amended the regulations by removing proposed § 643.3(b). As a result, current § 643.3(b), which would have been redesignated as § 643.3(c), remains unchanged as § 643.3(b) in these final regulations.

What services does a project provide? (§ 643.4)

Comment:

The majority of individuals who commented on § 643.4 suggested that the required services listed in § 643.4(a) were too burdensome, time intensive, cost prohibitive, or impractical for TS grantees and should be eliminated. One commenter suggested that these services should be allowable but not required. One commenter requested that we revise section § 643.4(b) to clarify that grantees may provide additional activities that are not included in the list of permissible services from the TRIO statute provided that these activities meet the goals of the TS program.

Discussion:

Section 643.4(a) includes the list of “Required Services” for a TS project, as mandated by section 402B(b) of the HEA. We do not have the discretion to eliminate these required services or to make them permissible. However, a grantee may provide the required services itself or through linkages with other organizations. Moreover, while a grantee must make all of the required services listed in § 643.4(a) available to its participants, not all TS participants may need all of the services or may choose not to take advantage of them. We did not intend for the regulations to prohibit grantees from offering additional services to meet the goals of the program; grantees may offer additional services not explicitly mentioned as required or permissible. Therefore, we have revised § 643.4(b) to reflect that intent more clearly.

Changes:

We have revised § 643.4(b) by adding paragraph (b)(8), which clarifies that a TS project may provide services other than those specified in § 643.4(b)(1) through (b)(7) that are designed to meet the purposes of the TS program.

What definitions apply? (§ 643.7)

Regular Secondary School Diploma

Comment:

Several commenters suggested that the definition for the term

regular secondary school diploma

be removed from the TS regulations because the assumption would otherwise be that any secondary school diploma would be a regular diploma. Many commenters asked what criteria the Secretary will use to determine whether a diploma constitutes a regular secondary school diploma under this definition. Other commenters suggested that we revise § 643.7 to define the term

regular secondary school diploma

with more specificity. Several commenters indicated that beginning in 2014 a “regular” diploma within their State will be the same as a diploma for completing the State's rigorous secondary school program of study.

In addition, several commenters requested that the definition for the term

regular secondary school diploma

be revised to include a timeline for the “standard number of years” in which participants would complete secondary school. A number of the commenters suggested that there was some confusion as to whether the phrase “standard number of years,” as used in §§ 643.21(a)(3) (selection criteria) and 643.22(d)(3) (criteria for calculating PE points) would be considered to end at the conclusion of the academic year or at the conclusion of a summer session. The commenters indicated that this difference would be significant due to the fact that some States require exit examinations. In these States, if a student does not graduate at the end of the academic year, he or she still has the opportunity to pass the examination during the summer. These commenters argued, therefore, that if the meaning of the phrase “standard number of years” includes the summer period, a project would be able to include as graduates those students who pass the examination in the summer. The commenters asked the Department to revise the definition of

regular secondary school diploma

to clarify whether to meet this definition a diploma must be obtained within the academic year.

Discussion:

Because we recognize that State policies concerning the requirement for a regular secondary school diploma may differ, we proposed a regulatory definition for this term that is broad enough to encompass varying requirements for a regular secondary school diploma. We do not agree with the commenters' suggestion that this definition be removed; we believe that the definition clarifies for grantees that their respective State standards should be used to determine whether a participant has attained a regular secondary school diploma.

With regard to the comments concerning the meaning of the phrase “standard number of years,” we acknowledge that there are a variety of State policies concerning graduation requirements, including exit examinations. We also appreciate that some States may not define what timeframe constitutes a “standard number of years” for high school graduation with a regular secondary school diploma; and, therefore, we should establish a consistent point of measurement for determining a grantee's performance under the outcome criterion for high school graduation with a regular secondary school diploma. The National Center for Education Statistics (NCES) generally measures “on time” high school graduation (

i.e.,

graduating within the standard number of years) as receiving a regular diploma within four years of entering ninth grade, which is consistent with the general approach to measurement and with high school graduation rates determined under the Elementary and Secondary Education Act of 1965, as amended (ESEA).

The Department interprets the standard number of years for high school graduation with a regular secondary school diploma generally to be one grade per year from the beginning of high school, which is usually ninth grade. Further, consistent with the ESEA regulations, in 34 CFR 200.19(b)(1)(iii), a student who passes the exit examinations for a regular high school diploma during the summer after the senior year would be considered to have graduated within the standard number of years. Finally, a student who graduates prior to the conclusion of a student's fourth (or final) year of high school would also be considered to have graduated within the standard number of years.

Changes:

None.

Definition of Rigorous Secondary School Program of Study

Comment:

Several commenters suggested that a dual enrollment program should be considered as meeting the TS definition of a

rigorous secondary school program of study.

The commenters also recommended that this definition be revised to include as a rigorous secondary school program of study a secondary school program in which a student completed at least two dual enrollment courses for which the student received a grade of “B−” or better and college credit. Another commenter suggested adding to the type of rigorous secondary school program of study described in paragraph (3)(iii) of the definition the requirement that students must successfully complete, at minimum, courses in Anatomy/Physiology, Physical Science, and Environmental Science. Another commenter asked whether the language in paragraph (3) of the definition that provides that a rigorous secondary school program of study include one year of a language other than English would be satisfied by computer science coursework.

Several commenters asked whether the types of programs described in paragraphs (3) and (4) of the definition of

rigorous secondary school program of study

are redundant. The commenters stated that the State Scholars Initiative of the Western Interstate Commission for Higher Education (WICHE) requires the same coursework as that listed in the type of program described in paragraph (3) of the definition.

Therefore, under the WICHE standards, any student who completes a rigorous secondary school program of study under paragraph (4) of the definition would also have completed a rigorous secondary school program of study that satisfies paragraph (3) of the definition. Several commenters suggested that the definition of a

rigorous secondary school program of study

be amended to provide a common single definition instead of including several types of programs that meet this definition, so grant applications can be judged and scored using a common definition. Other commenters indicated that they believed that the presentation of the six types of programs that would meet the definition of a

rigorous secondary school program of study

suggests that an individual program of study would have to meet all six options to meet the definition. They suggested that the definition be clarified by including the word “or” after each of the first five paragraphs. Another commenter suggested that the Department add the words “one of the following” to the definition to clarify that any one of the listed options meets the definition of

rigorous secondary school program of study.

Discussion:

The Secretary disagrees with the commenters who suggested that completion of either a dual enrollment program or a secondary school program that includes two dual enrollment courses with a grade of B− or better should qualify as a rigorous secondary school program of study. We do not believe all dual enrollment programs or courses are rigorous enough to support either of these approaches. Of course, a dual enrollment program or secondary school program that includes dual enrollment courses that otherwise meets one of the criteria in the definition in the regulations would qualify as a rigorous secondary school program of study.

The Secretary also does not agree with the suggestion to add additional required coursework to the definition or with the suggestion to provide a single definition of a rigorous program of study. These suggestions would make the definition overly restrictive and might limit the States' authority to establish curricular standards.

A project, if using the criteria for a rigorous secondary school program of study in paragraph (3), cannot substitute a computer science course for one year of a language other than English. However, the specific course requirements for a rigorous secondary school program of study in paragraphs (1), (2), (4), (5), and (6) may differ from those in paragraph (3).

Further, we believe that the criteria provided in paragraphs (3) and (4) in the definition of a

rigorous secondary school program of study

are sufficiently different in content and should not be combined into a single criterion. While some programs may meet both paragraphs (3) and (4), this will not always be the case. We note, for example, that the WICHE course requirements are more specific than those described in paragraph (3) of the definition. Under paragraph (3) of the definition, a program of study must include three years of science, including one year each of at least two of the following courses: Biology, chemistry, and physics; in contrast, under WICHE requirements, a program of study must require that students complete courses in all three of these subjects. A program of study that meets paragraph (4) of the definition, therefore, will also meet the criteria under paragraph (3) of the definition, but the reverse is not true. Finally, we do not believe it is necessary to add the word “or” after each criterion in this definition. The definition provides that a program meeting any one of paragraphs (1) through (6) would satisfy the definition of

rigorous secondary school program of study.

Changes:

None.

Comment:

Several commenters noted that the term “rigorous secondary school diploma” was not defined in the TS regulations.

Discussion:

We inadvertently referred to “rigorous secondary school diploma” in the amendatory language when we meant “rigorous secondary school program of study,” and have corrected this typographical error.

Change:

We have corrected the typographical error in the amendatory language describing the changes to § 643.7(b).

What assurances must an applicant submit? (§ 643.11(a))

Comment:

Some commenters objected to the proposed change, reflected in proposed § 643.11(a), that would have required a project to provide an assurance that at least two-thirds of the subset of participants receiving support to complete a rigorous secondary school program of study must be low-income individuals who are potential first-generation college students. The commenters argued that the requirement was an unnecessary burden and would be costly for TS projects, which serve large numbers of participants, because it would require the project to monitor the eligibility and services provided to this subset of participants separately.

Discussion:

After reviewing the information provided by the commenters, the Secretary agrees that tracking the eligibility of participants in a rigorous secondary school program of study separately from other TS participants may be overly burdensome and costly to grantees so we have decided not to adopt the revisions we proposed for § 643.11(a).

Changes:

In these final regulations, § 643.11(a) will not include the proposed addition of the words “, and at least two-thirds of the participants selected to receive support for a rigorous secondary school program of study.” Instead, § 643.11(a) will remain substantively unchanged from current § 643.10(a).

Coordination Among Outreach Programs Serving Similar Populations (§ 643.11(b))

Comment:

The Department received many comments regarding the language in proposed § 643.11(b), which would have required applicants to provide an assurance that individuals receiving project services will not receive the same services from another TRIO project, a GEAR UP project, or other programs serving similar populations. Several commenters argued that this provision goes beyond the statutory language and will restrict collaboration among programs. The commenters stated that collaboration is essential in the current economic climate.

Several commenters also expressed concerns about how this provision would be implemented. The commenters stated that participants may receive the same service from two programs, but at different times of the year or on different days of the week. Some commenters expressed concerns that the provision could negatively affect individuals who already participate in more than one program and who may have to stop receiving certain services. Many commenters argued that it would be difficult, if not impossible, for projects to track and record all of the services that participants may receive from other programs. Some commenters noted that, as proposed, § 643.11(b) could prevent participants from receiving specialized services, and that often services that appear duplicative can actually serve to reinforce important concepts. One commenter suggested that this provision could create competition among programs. A few commenters also suggested that this provision could impede a project's ability to comply with other sections of the HEA, such as exposing participants to institutions of higher education, cultural events, or academic programs.

In light of these concerns, many commenters recommended that the Department delete § 643.11(b) in its entirety. Others recommended striking the words “a GEAR UP project under 34 CFR part 694” and “or other programs serving similar populations.” Some commenters noted that projects should consult with other programs to ensure minimal overlap of services and suggested that the language in this section be revised to permit a participant to enroll in one or more programs as long as the programs document which program will provide which services.

Discussion:

We intended § 643.11(b) to help ensure that the limited funds available under the TRIO, GEAR UP, and other programs for disadvantaged students are used effectively and efficiently by minimizing the duplication of services. Because many of the same services are provided by TS, UB, GEAR UP, and other pre-college preparation programs, coordination of activities is essential to ensure that these programs reach as many students as possible.

Grantees are encouraged to share ideas and coordinate services and activities with other Federal and non-Federal programs serving similar populations, as long as each project maintains fiscal practices that ensure that funds are not comingled and that services provided are appropriately documented. For example, a TS project and a UB project may jointly conduct a field trip to a college campus for participants from both projects while assigning costs to each project based on the number of its participants and staff who attended.

To ensure effective coordination of services, we recommend that a project, when selecting target schools, determine if there is another TRIO, GEAR UP, or similar program at the school; and, if additional services are needed at the school, the project should develop collaboration plans to avoid duplication of services and competition among projects for participants. In selecting project participants, a project should also ask the student whether he or she is involved in similar college readiness programs so services can be coordinated.

Based on the comments, the Secretary has determined that proposed § 643.11(b) may be difficult to implement. Accordingly, we have revised the regulatory provision to address implementation problems like those raised by the commenters.

Changes:

We have amended § 643.11(b) to require applicants to submit assurances that the project will collaborate with other Federal TRIO projects, GEAR UP projects, or programs serving similar populations that are serving the same target schools or target area to minimize the duplication of services and promote collaborations so that more students can be served.

What selection criteria does the Secretary use? Need for the project. (§ 643.21(a))

Comment:

We received a number of comments on the requirement that, for certain criteria in § 643.21(a), the applicant provide data for “the most recent year for which data is available.” These commenters suggested that the Department revise § 643.21 to require applicants to submit data for multiple years or to reinstate the current regulatory language requiring the applicant to provide the required data for the preceding three years to substantiate the basis of need.

Discussion:

To reduce the burden on TS applicants, these final regulations only require a grantee to provide data on high school persistence (see § 643.21(a)(2)), graduation (see § 643.21(a)(3)), and postsecondary enrollment (see § 643.21(a)(4)) for the most recent year for which data are available. Based on our experience, these data remain fairly consistent over a three year period; therefore, we believe the most recent year's data should be sufficient for the peer reviewers to assess the extent of the need for the project.

Changes:

None.

Comment:

One commenter suggested that § 643.21(a)(1) should focus on students “enrolled in” or “participating in” the free or reduced price lunch program, as described in sections 9(b)(1) and 17(c)(4) of the Richard B. Russell National School Lunch Act, rather than students “eligible for” this program. This commenter also noted that applicants from areas such as the Republic of the Marshall Islands, the Federated States of Micronesia, and other outlying areas would not be able to respond to the criterion regarding eligibility for free or reduced price lunch.

Discussion:

We used the words “eligible for” free or reduced priced lunch because reporting only on those “enrolled or participating” in this program may undercount the number of low-income students in the target schools because many secondary school students choose not to participate in the free or reduced priced lunch program. In responding to the selection criterion in § 643.21(a)(1), applicants may choose to report either the number or percentage of low-income families residing in the target area (see paragraph (a)(1)(i) of this section)

or

the number or percentage of students attending the target schools who are eligible for free or reduced priced lunch (see paragraph (a)(1)(i) of this section). Therefore, applicants from areas that do not have the free and reduced priced lunch

program may satisfy this criterion by providing data on the number or percentage of low-income families residing in the target area.

Changes:

None.

Comment:

One commenter stated that the TS program is critical to increasing high school persistence and postsecondary enrollment rates in target schools but argued that the criteria for determining the need for the project in § 643.21(a) worked against this goal. The commenter argued that these criteria penalize TS projects that are successful in helping the target schools increase their high school persistence and postsecondary enrollment rates when these projects apply for a new grant to continue to serve these schools. The commenter expressed concern that as the performance of these target schools improves, the need for the TS project, as defined in these criteria, diminishes. The commenter acknowledged the Department's need to establish the postsecondary enrollment and high school persistence rates for the purposes of benchmarking objectives, but recommended that: (1) The

Need

criteria for low postsecondary enrollment and high school persistence rates be removed from the

Need

section; and (2) that the points assigned for low high school persistence and postsecondary enrollment rates be redistributed among the other

Need

criteria.

Another commenter requested guidance on how applicants in States where attrition rates are not reported should respond to the high school persistence criterion in § 643.21(a)(2). Other commenters stated that data on graduation rates are not collected by their school districts and, therefore, are not available at the target schools, which would penalize applicants from those areas.

Several commenters suggested that the high school persistence and high school graduation criteria disadvantage projects serving rural schools that do not have high dropout rates and do not have low high school graduation rates but have low postsecondary enrollment rates and little access or low participation in courses needed to complete rigorous secondary school programs of study.

One commenter expressed concern about the criterion on low rates of students in the target schools who graduated high school with a regular secondary school diploma reflected in § 643.21(a)(3). The commenter believes TS applicants would be discouraged from selecting target schools that had high rates of students who graduated with a regular secondary school diploma as these schools would not demonstrate high need. Another commenter noted that in the commenter's State, the minimum graduation requirements almost guarantee a rigorous secondary school program of study for all graduates. This commenter expressed concern that TS applicants in areas that have these rigorous graduation requirements would be allowed fewer points for project need under § 643.21(a)(5) and that this result would be unfair to the students in those areas or States that have been proactive by setting high standards for high school graduation. Another commenter questioned the use of the term “regular” diploma noting that, beginning in 2014, a “regular” diploma in the commenter's State would be the same as a diploma for completing the State's rigorous curriculum. Those students not taking a rigorous secondary school program would receive a “modified” diploma. The commenter stated that by using the term “regular” in the regulations, all TS students in the State would have to meet the rigorous curriculum standards.

Discussion:

The proposed criteria for evaluating the need for a TS project reflect the changes made by sections 403(a)(5) and 403(b)(1) of the HEOA to sections 402A(f)(3)(A) and 402B(a) of the HEA, respectively. The new criteria reflected in § 643.21(a) align with the purpose of the TS program and with the new statutory outcome criteria for the program. Therefore, we do not have the discretion to revise § 643.21(a) as requested by the commenter.

The selection criteria require the applicant to provide in the application the data the peer reviewers need to assess the extent to which an applicant's designated target area and target schools need the services of a TS project. Further, the data provided in the

Need

section of the application provide baseline data that the peer reviewers use to evaluate the appropriateness of the applicant's proposed project objectives (see § 643.21(b)) and the quality of the applicant's plan of operation for addressing the identified needs (see § 643.21(c)).

In responding to the selection criteria, an applicant is expected to present the required data and discuss how the data support the need for a TS project in the proposed target area and target schools. With regard to selection criteria for which the target schools do not collect the required information, the applicant, to the extent appropriate, may use other data sources (e.g., State or census data) and describe how these data relate to the criteria and demonstrate a need for a TS project in the target area and target schools. Although some applicants may have difficulty securing certain data, all applicants should be able to provide the data required for most of the criteria. The Department believes that it is the responsibility of applicants to judge the need for TS services among potential target schools and to present data that supports the need for a TS project in the proposed target schools.

We do not believe the

Need

criteria will disadvantage an applicant providing services in rural communities because the applicant can justify the need for a TS project by presenting their data in the context of the geographic area in which it is providing services. Further, the applicant does not need to compare its data with data from other geographic areas (e.g., urban schools).

The Secretary commends those States that have set high standards for high school graduation and the

Need

criteria in the TS regulations do not conflict with such standards. Under § 643.21(a)(5), an applicant can demonstrate a need for a TS project by providing data on the extent to which the target secondary schools do not offer their students the courses or academic support to complete a rigorous secondary school program of study

or

have low participation by low-income or first-generation students in such courses. Therefore, an applicant can show the need for a TS project in schools that have high academic standards for high school graduation if TS eligible students are not taking rigorous courses. The Secretary also believes that the extent to which TS eligible students succeed in completing rigorous courses is an important indicator of need. Therefore, we have added the extent to which low-income or first generation students in target secondary schools succeed in rigorous secondary school program of study courses as an indicator of need.

With regard to the commenter's concern about the use of the term “regular diploma,” we do not have the discretion to change the regulatory language at issue because it is required by sections 402A(f)(3)(A)(iii) and (f)(3)(A)(iv) of the HEA, which mandate that the TS program include the following two measures: (1) The extent to which participants graduate from secondary school with a regular secondary school diploma in the standard number of years; and (2) the extent to which participants complete a rigorous secondary school program of study.

Changes:

The Secretary has amended proposed § 643.21(a)(5) by adding the words “or low success” after the word “participation.”

Comment:

One commenter expressed concern that the Need criteria do not

adequately consider students' achievement and performance in their target schools. The commenter stated that proposed § 643.21(a) does not reflect the purpose of the TS program, which he believes is to promote equal educational access and to eliminate barriers to higher education for low-income students. The commenter suggested that persistence and graduation rates are not an accurate reflection of student performance and achievement within schools in the lowest income communities. The commenter suggested that in addition to the points awarded for low high school persistence, graduation, and college completion, points also should be given for low student achievement and low standardized test scores in the target schools or areas.

Discussion:

We agree with the commenter that low academic achievement and low standardized test scores of students in the target schools are other indicators of need for a TS project. Therefore, we have revised the criteria in § 643.21(a)(6) to make these changes. We have also redistributed the points assigned to the

Need

criteria to better reflect the relative importance of each of the criteria.

Changes:

We have revised the criteria in § 643.21(a)(6) to include low academic achievement and low standardized test scores of students enrolled in the target schools as examples of other indicators of need for a TS project. We have also reduced the number of points assigned to the criteria in § 643.21(a)(1)—high number or percentage of low-income families residing in the target area or low-income students attending the target schools—from six points to four points. Finally, we have increased the number of points assigned to the criteria in § 643.21(a)(6) from four points to six points.

What selection criteria does the Secretary use? Objectives. (§ 643.21(b))

Comment:

Several commenters suggested that proposed § 643.21(b)(4) and (b)(5), which would require grantees to track participants through postsecondary completion is not within the scope or purpose or the TS program. These commenters asserted that the HEA only requires projects to encourage and prepare participants for “enrollment” into postsecondary programs. Some commenters also suggested that the tracking requirement for this criterion is unrealistic based on the high number of participants that are served by a TS project.

Several commenters requested clarification regarding whether grantees will need to track all graduates through postsecondary completion or just those who participated in a rigorous secondary school program of study. Several commenters suggested that grantees only be required to include in the random selection process for tracking postsecondary completion seniors that graduate from high school during the project year. Several commenters requested that a more feasible requirement would be to request postsecondary acceptance rates or “college going rates” because they believe that the criterion regarding tracking postsecondary enrollment and completion discriminates against high schools that do not track these outcomes and that there is no reasonable method to collect this data accurately.

Other commenters suggested that projects should not be held responsible for students' postsecondary degree attainment, which requires tracking for four to six years after each graduating class and will require projects to follow the academic progress of these students once they enter college even though the TS program is not providing any services during this time. These commenters expressed concern that this criterion does not consider the many factors that determine whether or not students will be successful in postsecondary education.

One commenter requested that we consider revising the regulations to avoid imposing mandatory, inefficient, and unreasonable tracking and sampling methods. Specifically, the commenter recommended that, because sampling and other tracking methods will increase the burden on programs, we should eliminate the sampling requirement altogether and instead limit tracking of postsecondary completion to only current year participants who complete secondary school during the current project year.

Discussion:

Section 402A(f)(3)(A)(vi) of the HEA, as amended by section 403(a)(5) of the HEOA, requires the Department to use postsecondary education completion, if practicable, in evaluating the quality and effectiveness of a TS project. Because TS projects serve relatively large numbers of participants, we recognize that it may be difficult for the project to track all participants through completion of postsecondary education. Therefore, a TS project may track a randomly selected sample of its participants. The purpose of § 643.22(d)(6) is to reduce, not increase, the burden on grantees. A grantee, however, is not required to use a sample but may choose to track all participants that complete secondary schools and enroll in postsecondary education.

The Secretary plans, subject to meeting the requirements of the Paperwork Reduction Act of 1995, to establish standard objectives related to postsecondary completion and provide the sampling parameters in the

Federal Register

notice inviting applications and the application package for the TS program.

Changes:

None.

What selection criteria does the Secretary use? Plan of Operation: The plan to identify and select eligible project participants. (§ 643.21(c)(2))

Comment:

Some commenters requested that § 643.21(c)(2),

regarding the applicant's plan for identifying and selecting eligible participants, be revised to track current § 643.21(c)(2), which requires applicants to have a plan to identify and select eligible participants and ensure their participation without regard to race, color, national origin, gender, or disability.

Discussion:

In developing proposed § 643.21(c)(2), the Department elected not to retain the selection criterion requiring applicants to have a plan to ensure participants' participation without regard to race, color, national origin, gender or disability because we believed that this language was duplicative of other regulations. Every applicant for Federal financial assistance must submit an assurance to the Department that it will comply with the Federal civil rights laws (see 34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23). Further, grantees under the TRIO programs and other programs funded by the Department are required to comply with Federal laws that prohibit discrimination on the basis of race, color, national origin, sex, handicap, or age (see 34 CFR 75.500, § 643.6(a)(2)).

Changes:

None.

What selection criteria does the Secretary use? Plan of Operation: The plan to identify and select eligible project participants, and the plan regarding a rigorous secondary school program of study. (§ 643.21(c)(2) and (4)) and Number of Participants (§ 643.32(b))

Comment:

Some commenters applauded the Secretary for proposing to include in the selection criteria the requirement that applicants have a plan to identify and select eligible participants and to provide TS services for individuals who need them to complete a rigorous secondary school program of study. The commenters requested guidance from the Department on its expectations regarding the number or percentage of

participants that would have to be served in a rigorous program under these selection criteria.

Some commenters expressed concern that the selection criteria requiring grantees to assist students to complete a rigorous curriculum (§ 643.21(c)(4)) would place grantees serving rural areas at a serious disadvantage in comparison to those serving urban areas. The commenters argued that in order to serve the required number of participants, a TS project serving a rural area typically serves more target schools and a larger geographic area, which increases project costs, particularly staff travel costs. Further, the commenters noted that many small rural schools do not offer all the courses a student would need to complete a rigorous secondary school program of study.

Many commenters expressed concern that requiring grantees to assist students to complete a rigorous curriculum would add costs for a grantee. These commenters stated that providing these services would require grantees to hire staff with special skills needed to recruit, monitor, and track students in a rigorous curriculum program. The commenters suggested that, at the current funding level for this program, for a grantee to provide these types of rigorous curriculum services to at least 10 percent of the participants, it would need to reduce the number of participants from 600 (the currently required minimum) to 450. Other commenters noted that the increased costs of assisting students taking a rigorous curriculum under § 643.21(c)(4) and the new requirement to follow participants through postsecondary education in § 643.21(c)(5) would force current TS projects to serve fewer students than currently being served or reduce services.

Some commenters suggested that the selection criteria in § 643.21(c)(2) and (c)(4) will require projects to implement a two-tiered program of service delivery—the first tier would support the participants completing a rigorous curriculum and the second tier would provide college preparatory education for those participants not taking a rigorous secondary school program of study. The commenters argued that this two-tiered approach would force current projects to change their participant recruitment and selection strategies, hire additional staff, and reduce the number of students currently being served. These commenters also contended that, given the current budget crisis in local school districts, some projects would not be able to assist participants in completing a rigorous secondary school of study under § 643.21(c)(4) due to the unavailability of the curriculum and other resources.

Other commenters noted that the proposed changes requiring projects to provide intensive services appear to be very similar to the requirements of the Upward Bound program. Several commenters requested guidance regarding the delivery of services for students in a rigorous secondary school program of study who have different educational and developmental needs compared to traditional TS students.

Discussion:

In amending the HEA, Congress substantially changed the purpose and goals of the TS program. By including in section 402A(f)(3)(A) of the HEA several new outcome criteria for evaluating the quality and effectiveness of TS projects, Congress effectively required all TS projects to expand the types of services provided. Prior to enactment of the HEOA, the statute did not prescribe any specific performance measures for TS projects; the current measures were established through regulations (see current § 643.22). The new statutory outcome criteria for assessing the success of a TS project include the following two new measures, which are not included in the current regulations: (1) The completion by participants of a rigorous secondary school program of study; and (2) to the extent practicable, completion by participants of postsecondary education. In addition, Congress amended section 402B of the HEA to require TS grantees to provide certain services; previously the HEA included only a list of “permissible” services that a grantee could choose to provide to participants. These final TS regulations appropriately reflect these statutory changes.

The Department acknowledges that many rural schools and low achieving high schools may not offer all of the courses needed to complete a rigorous secondary school program of study and recognizes that there will probably be some participants that will need more costly and intensive services, such as tutoring or tuition assistance to complete the requirements of a rigorous secondary school program of study.

In recognition of the additional costs that grantees likely will incur in providing the new services required by the HEOA, including the increased costs of assisting students taking a rigorous curriculum and following participants through postsecondary education, the Secretary revised § 643.32(b) by removing the requirement that grantees serve a specified minimum number of participants. Section 643.32(b) specifies that the Department will identify the minimum and maximum grant award amounts and the minimum number of participants a TS project must serve each year of the grant cycle in the

Federal Register

notice inviting applications for a competition. This practice will give the Department the flexibility to establish the minimum number of participants to be served based on the available resources and other priorities for each competition and to adjust these numbers for subsequent competitions based on our experience, changing priorities, and cost analyses.

The Department acknowledges that not all TS eligible students may be ready for a rigorous secondary school program of study. Therefore, the Secretary has revised proposed § 643.21(c)(4), which would have specified that we evaluate a TS applicant on a plan to provide services sufficient to enable TS participants to succeed in a rigorous program of study. Instead, the final regulations specify that we will evaluate a TS applicant on a plan to work in a coordinated, collaborative, and cost-effective manner as part of an overarching college access strategy with the target schools or school system and other programs for disadvantaged students to provide participants with access to and assistance in completing a rigorous secondary school program of study. We expect TS grantees to work with their target schools, students, and parents to explain the eligibility requirements for participation, and the services and activities that will be provided by the TS project and those services that will be provided through the target school or by other programs.

Further, because all TS participants will be encouraged to complete a rigorous curriculum, the Secretary has also revised proposed § 643.21(c)(2) by removing the requirement that an applicant present a plan for selecting individuals who would receive support to complete a rigorous secondary school program of study.

Although the new statutory outcome criteria for the TS program are somewhat similar to those for the UB program and will require new project goals and objectives for the TS program, the Department does not believe that Congress intended for the TS program to replicate or duplicate UB. For example, section 402C(c) of the HEA requires UB projects to provide instruction in mathematics through precalculus, laboratory science, foreign language, composition, and literature while TS projects need only provide “connections” to high quality academic tutoring services (section 402B(b)(1) of the HEA). The regulations properly reflect the differences between the programs.

Regarding the comment about students in a rigorous secondary school program of study who have different educational and developmental needs compared to traditional TS students, we recognize that students in a rigorous secondary school of study may have different educational and developmental needs than traditional TS students, most of whom have needed assistance in completing admission and financial aid applications, not academic support. Applicants for TS grants must design and implement new service delivery models that are consistent with the new statutory requirements and that balance intensity of services with strategic coordination with schools and other programs to carry out projects that are cost efficient and that best meet students' needs, including the needs of students in rigorous secondary school program of study.

Changes:

We have amended proposed § 643.21(c)(2) to remove the selection criterion requiring an applicant to provide a plan for identifying and selecting participants for a rigorous secondary school program of study. Thus, final § 643.21(c)(2) requires only that an applicant provides a plan for identifying and selecting participants.

We also have removed the proposed criterion in § 643.21(c)(4) and replaced it with a criterion that requires an applicant to present a plan to work in a coordinated, collaborative, and cost-effective manner as part of an overarching college access strategy with the target schools or school system and other programs for disadvantaged students to provide participants with access to and assistance in completing a rigorous secondary school program of study.

In § 643.21(c)(5) we have removed from the proposed criterion the words “coordination with other programs for disadvantaged youth” to eliminate duplication of the provision we are adding to § 643.21(c)(4).

Finally, we have revised § 643.32(b) to specify that for each year of the project period, a grantee must serve at least the number of participants that the Secretary identifies in the

Federal Register

notice inviting applications for a competition, and to state that through this notice, the Secretary provides the minimum and maximum grant award amounts for the competition.

What selection criteria does the Secretary use? Plan of Operation: The plan to follow former participants as they enter, continue in, and complete postsecondary education. (§ 643.21(c)(6))

Comment:

Some commenters objected to the proposed criteria in § 643.21(c)(6) that would require TS applicants to have a plan to follow former participants as they progress in postsecondary education. These commenters suggested that it is not reasonable, practicable, or economically feasible for the Department to judge the success and effectiveness of a TS project on the basis of the degree to which participants enter, continue in, and complete postsecondary programs when the project cannot provide retention services during the participants' college years.

Discussion:

Section 402A(f)(3)(A)(v) and (f)(3)(A)(vi) of the HEA includes the enrollment in and completion of postsecondary education as an outcome criterion for the TS Program. To implement these statutory requirements, § 643.21(c)(6) requires applicants to have a plan to achieve goals in these areas.

Changes:

None.

Comment:

Some commenters requested that we define the phrase “complete postsecondary education,” as it is used in § 643.21(c)(6). In particular, these commenters asked if completion of vocational and technical degree programs and/or other community college degrees would constitute completion of postsecondary education under this selection criterion. The commenters suggested that if the standard is the completion of a four-year degree, a project could not count TS participants enrolling in and completing community and junior colleges and career technology programs.

Discussion:

For purposes of § 643.21, the Secretary considers programs of postsecondary education to include vocational and technical degree programs, associate degree programs, as well as bachelor degree programs. Because TS participants may enroll in all types of postsecondary programs, the project should present a plan to follow a sample of former participants through completion of their programs of postsecondary education.

Changes:

None.

What selection criteria does the Secretary use? Applicant and Community Support: Resources secured through written commitments. (§ 643.21(d)(2))

Comment:

Several commenters requested clarification of the selection criteria requiring that TS applicants get commitments from the community. Some commenters asked if an applicant that is an institution of higher education must get commitments from institutions other than the host institution. Other commenters expressed concern that secondary schools would not be interested in becoming educational partners with university-based projects because secondary schools are now eligible to apply for TS grants. The commenters stated that secondary school applicants would have an unfair advantage in a TS competition, because they could operate a TS project without getting commitments from colleges and universities while an applicant that is an institution of higher education or community-based organization would need commitments from the secondary schools to effectively serve the secondary school students participating in the TS project. The commenters recommended that secondary schools be held to the same selection criteria as higher education institutions and other eligible entities.

Discussion:

The intent of § 643.21(d)(2) is to ensure a fair and equitable competition by requiring that all applicants secure commitments from various entities within the community. The Secretary believes that schools and community organizations should secure commitments from institutions of higher education so that these organizations have the full scope of partners necessary to implement a successful TS program. The Secretary does not agree with the contention that possible applicants in the secondary school systems would not be interested in partnering with higher education institutions, community organizations, or others. Nonetheless, based on the comments received, the Secretary believes that the wording of proposed § 643.21(d)(2) may be unclear. For this reason, we have made clarifying changes to this provision.

Changes:

We have revised proposed § 643.21(d)(2) to state that: (i) An applicant that is an institution of higher education must include in its application commitments from the target schools and community organizations; (ii) an applicant that is a secondary school must include in its application commitments from institutions of higher education, community organizations, and as appropriate, other secondary schools and the school district; and (iii) an applicant that is a community organization must include in its application commitments from the target schools and institutions of higher education.

How does the Secretary evaluate prior experience? (§ 643.22)

Comment:

Some commenters asked that we revise § 643.22 to clarify the meaning of the term “prior participants” for purposes of the PE evaluation in § 643.22(d)(3) through (d)(5). These commenters requested that TS projects not be required to track prior participants through postsecondary completion. The commenters stated that a requirement to track prior participants after they participate in the program is an undue burden on a TS project given the number of students served and the amount of funding per participant. The commenters argued that grantees should not be required to track non-active participants who graduated from the program years earlier.

Several commenters also asked that § 643.22(d)(5) be changed to permit participants' postsecondary enrollment to be by the “fall or spring” term immediately following the school year, instead of by the “fall” term immediately following the school year because some participants may need to delay enrollment in postsecondary education.

Discussion:

As noted earlier in this preamble, with the enactment of the HEOA, the HEA includes new outcome criteria for the TS program, including: Graduation from secondary school with a regular secondary school diploma in the standard number of years; the completion of a rigorous secondary school program of study; and postsecondary enrollment. The Department is required to use these criteria to assess the success of a TS project. However, the Department acknowledges that TS projects serve large numbers of participants each year and may not have the resources needed to track prior participants through high school and into postsecondary education. Therefore, the Department is revising § 643.22(d)(3), (d)(4), and (d)(5) by removing the requirement to track prior participants and clarifying, in § 643.22(d)(3) and (d)(4), that grantees must track participants served during the project year.

Further, we have decided to revise the outcome criterion in § 643.22(d)(5) to focus on participants' enrollment in programs of postsecondary education within the time period specified in the approved objective rather than stating in the regulation the time frame for measurement. The Secretary will, subject to meeting the requirements of the Paperwork Reduction Act of 1995, include in the application package for the TS programs a standard objective related to postsecondary enrollment that includes the time frame for measuring postsecondary enrollment. This will give the Secretary the flexibility to change the period of measurement for each grant competition based on changing situations.

We have also revised the outcome criterion in § 643.22(d)(6) to clarify that a grantee must track the postsecondary completion for only those participants who enrolled in a program of postsecondary education. The option to use a randomly selected sample of participants to track this postsecondary completion should reduce the reporting burden on grantees.

For consistency with the regulatory language used in § 643.22(d)(2), (d)(3) and (d)(6), we have deleted the words “the percentage of” in § 643.22(d)(4) and (d)(5). In addition, we have revised § 643.22(d)(4) by removing the words “who enrolled in and” before the words “completed a rigorous secondary school program of study” to be consistent with the changes we have made to §§ 643.3(b), 643.11(a), 643.21(c)(2) and (c)(4) and 643.32(b)(5), which now include additional participant eligibility and recordkeeping requirements for students in a rigorous program of study.

Changes:

We have changed proposed § 643.22(d)(3), (d)(4), and (d)(5) by removing the reference to prior participants in each of these three provisions. In § 643.22(d)(3) and (d)(4), we have clarified that current participants are “participants served during the project year.” In addition, in § 643.22(d)(4) and (d)(5), we have removed the words “the percentage of” and in § 643.22(d)(4) we have also removed the words “enrolled in and.”

Further, we have changed proposed § 643.22(d)(5) by replacing the words “by the fall term immediately following the school year” with the words “within the time period specified in the approved objective” and have revised § 643.22(d)(6) by replacing the words “regarding the completion of” with the words “project participants who enrolled in and completed.”

Comment:

Some commenters stated that the 1.5 PE points in § 643.22(d)(6) for postsecondary completion should be reduced because there are many variables outside the control of the TS project that could affect this outcome. The commenters recommended that only one-half of one point (0.5 point) be assigned to this criterion because the participants' postsecondary completion may not be based on direct services the project provides to participants.

Discussion:

The Secretary does not agree with the commenters' suggestion to reduce the points allocated to the postsecondary-completion criterion. The Secretary believes that one-half of one point is a negligible amount, which goes against the spirit of the HEA. The 1.5 points for this criterion in § 643.22(d)(6) represents only 10 percent of the total PE points a project could earn.

Changes:

None.

What are allowable costs? (§ 643.30)

Comment:

A number of commenters suggested including several additional costs to the list of allowable costs for the TS program in § 643.30. Some commenters recommended that we add as an allowable cost, participant meals while on field trips, in tutoring sessions, or at other events because many participants cannot afford to pay for meals while on field trips or at other project sponsored events. Some commenters recommended that we add transportation and meals for parents to attend certain workshops and college visits.

Other commenters suggested that we add an allowable cost provision for cultural events, including associated transportation, meals, and admission fees, because cultural events are permitted under § 643.4(b)(4) and TS participants would benefit from exposure to these events. Commenters also recommended that costs associated with hiring instructional staff, evening and weekend staff, or retraining or renegotiating contracts with current staff to provide tutoring for rigorous coursework, financial literacy programming, or college entrance exam preparation be allowable.

Commenters also suggested that testing fees, including general educational development (GED) exam fees, should be allowable, as these costs are increasing and TS projects are not always able to attain fee waivers.

Some commenters requested clarification regarding the Department's addition of the word “project” before the word “staff” in § 643.30(a). These commenters noted that the provision now appears to prohibit projects from paying meals and lodging for chaperones and part-time summer staff.

Discussion:

Section 643.30(a) permits a project to pay transportation, meals, and, if necessary, lodging, for participants and staff in a number of situations, including for field trips to observe and meet with persons employed in various career fields. However, the TS program is a low cost per participant program and we do not believe adding meals as an allowable cost for all field trips, tutoring sessions, or other events, or adding transportation and meals for parents to attend certain workshops and college visits would be the best use of limited resources.

Section 643.30(c) establishes the conditions upon which a TS project may pay for college applications or entrance examinations. We have revised § 643.30(c) to include fees that are required for alternative education examinations, including the GED. Further, as one of the required services, a TS project must assist participants in preparing for college entrance examinations; however, because the TS program is a low cost per participant program, we do not believe it is reasonable for a TS project to pay a third party for college entrance exam preparation for individual participants.

Regarding an allowable cost provision for cultural events, the Department believes that field trips and campus visits, which are allowable costs, may have cultural benefits for participants. While we encourage grantees to incorporate cultural events into these types of trips, we do not agree that cultural events should be added to the regulations as a separate allowable cost category. While the Department understands the value of cultural events, we believe that adding them as an allowable cost would divert scarce resources away from direct college-access services. Connections to tutoring and financial and economic literacy services are required services of the TS program; therefore, costs associated with providing these services would be allowable, including hiring or retraining staff members to provide these services.

Nonetheless, the Department encourages grantees to seek low cost alternatives to hiring instructional staff, such as seeking connections to existing tutoring or financial literacy services for TS participants. Further, TS grantees should coordinate with the target schools and other organizations in the community to ensure that participants have access to the full range of services required for success.

Finally, the term project staff, as used in § 643.30(a), includes part-time staff, including summer staff, and volunteers responsible for chaperoning TS participants on field trips and campus visits; therefore project funds may be used to pay for these individuals' meals and lodging.

Changes:

We have revised § 643.30(c) to include examination fees for alternative education programs if a waiver of the fee is unavailable and the fee is paid by the grantee to a third party on behalf of a participant.

Comment:

One commenter noted that transportation costs for participants in a rigorous curriculum in rural areas would be costly and may use up limited TS funds. The commenter argued that level funding has damaged a TS project's ability to provide additional transportation costs, particularly in light of the costs of the fringe benefits required to be provided to TS staff as mandated by most State institutions. Other commenters argued that projects do not have sufficient funding to provide tuition for participants. Some commenters also noted that payment of tuition for a few participants may be perceived as discriminatory by participants pursuing regular secondary school diplomas.

Discussion:

We appreciate the commenter's concern that the costs associated with transportation of participants in rural areas and payment of tuition would use up limited TS funding. We also appreciate commenters' concern that payment of tuition for a few participants may be perceived as discriminatory. On the other hand, during the negotiated rulemaking sessions, some non-Federal negotiators argued that allowing grantees to use grant funds for this purpose was necessary to meet the goals of the statute. As discussed earlier in this preamble, one of the new statutory outcome criteria for the TS program requires that TS projects report data on the completion by participants of a rigorous secondary school program of study that would make them eligible for grants under the Academic Competitiveness Grants (ACG) Program. Some non-Federal negotiators recommended that TS grantees be authorized to pay transportation and tuition costs for participants who are trying to complete a rigorous program, when courses required for the program are not offered at the secondary school the participant attends or at another local school. The Department decided to allow grantees to use program funds for this purpose. The regulations do not require TS grantees to provide tuition or transportation costs for participants but authorizes this expense as an allowable cost to assist students in completing a rigorous secondary school program of study.

Changes:

None.

Comment:

Some commenters suggested allowing TS program funds to be used to pay for “service agreements” for computer systems and related technology because many technology systems may require service agreements to cover repairs and software packages.

Discussion:

We agree with the suggestion made by the commenters.

Changes:

We have amended § 643.30(f) and (g) to include service agreements as an allowable cost.

Comment:

A few commenters recommended that we revise § 643.30(h)(3) to allow TS funds to be used to pay for tuition costs for accredited courses offered online because the availability of online courses has increased and allowing TS funds to be used for these courses could increase student access to rigorous curriculum study. One commenter recommended revising § 643.30(h)(3) to allow TS funds to be used to pay for coursework that may be offered by a college at sites other than the college campus, such as online or at a secondary school campus. Other commenters suggested allowing costs for Advanced Placement (AP) and the Idaho Digital Learning Academy coursework as these options may be available at participants' high schools and may cost less than postsecondary tuition.

Some commenters not

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