Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

                    See the                                          Document Drafting Handbook                                        for more details.                  

###### Department of Education

# AGENCY:

Office of Postsecondary Education, Department of Education.

# ACTION:

Notice of final priority.

# SUMMARY:

The Assistant Secretary for Postsecondary Education announces a priority under the Upward Bound (UB) Program. This priority will help focus Federal resources on students most in need of academic assistance and increase the effectiveness of the UB Program.

# Dates:

This priority is effective October 23, 2006.

# FOR FURTHER INFORMATION CONTACT:

                        Geraldine Smith or Gaby Watts, U.S. Department of Education, 1990 K Street, NW., room 7020, Washington, DC 20006-8512, or via Internet:                         *TRIO@ed.gov*.                    

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

                        Individuals with disabilities may obtain this document in an alternative format (                        *e.g.*, Braille, large print, audiotape, or computer diskette) on request to the contact person listed under                         **FOR FURTHER INFORMATION CONTACT**                        .                    

# SUPPLEMENTARY INFORMATION:

                    We published a notice of proposed priority (NPP) in the                     **Federal Register**                     on July 3, 2006 (71 FR 37926). We discussed our proposals for this program in the NPP on pages 37926-37928.                

                    This notice of final priority contains three changes from the NPP. We fully explain these changes in the                     *Analysis of Comments and Changes*                     section that follows.                

## Analysis of Comments and Changes

In response to our invitation in the NPP, 110 parties submitted comments. An analysis of the comments and of any changes in the priority follows. We group major issues according to subject. Generally, we do not address technical and other minor changes and suggested changes we are not authorized to make under the applicable statutory authority.

### Authority to Implement a Priority in the UB Program

*Comment:*                     A number of commenters expressed concern that the Department had overstepped its legislative and regulatory authority in proposing this priority. They believe the Department does not have the legal authority to impose a priority not specified in statute and that the proposed priority substitutes an administrative priority for a congressional priority, and circumvents legislation and regulations regarding selection of program participants based on grade level and need for academic support.                

*Discussion:*                     The Secretary does not agree with these commenters. The Department's authority to establish priorities for the TRIO programs and other discretionary grant programs is well established. The Department's regulations clearly reflect this authority in 34 CFR 74.11 and 75.105. Section 402C of the Higher Education Act of 1965, as amended (HEA), which authorizes the UB program, does not prohibit or limit the Secretary's authority to establish funding priorities to achieve the UB program's purposes. In fact, the Secretary has previously established priorities for the UB Program without challenge or questions.                     *See*                     the notice of proposed priority, 68 FR 37469 (June 24, 2003) and the notice of final priority, 68 FR 50958 (August 22, 2003), and the notice of proposed priority, 65 FR 35238 (June 1, 2000) and the notice of final priority, 65 FR 45698 (July 24, 2000).                

                    The priority proposed by the Secretary is consistent with the requirements for funding included in section 402C(d)(3) and (4) of the HEA. Those provisions stipulate that each UB program participant must have a need for academic support and must have completed eight years of elementary school education.                    *Change:*                     None.                

### Selection of First-Time UB Participants From Otherwise Eligible Students Who Have Completed the 8th Grade But Not the 9th Grade in Secondary School

*Comment:*                     Numerous commenters expressed concerns about the proposal to limit the selection of new UB participants to students who have completed the 8th grade but not the 9th grade in secondary school. These commenters stated that the focus on these students would not contribute to the effectiveness of the UB Program because of the lack of maturity of younger students; higher drop-out rates among younger students; the high mobility rates of UB participants; and increased costs for those projects that currently recruit from high schools that begin with the 10th grade. In addition, some commenters argued that selecting students in the 10th grade allows students to participate in the UB program for 36 months and those students have similar success rates as students selected during the 9th grade.                

*Discussion:*                     A 2004 report of a study conducted for the Department titled,                     *The Impacts of Regular Upward Bound: Results from the Third Follow-Up Data Collection*                     (the Study) concluded that, for students who participated in the UB program for less than two years, an additional year of participation in the program could raise the postsecondary enrollment rate by as much as nine percentage points. Among UB program participants who did not complete the program, the Study found that UB                           ( print page 55448)                        program completion could raise postsecondary enrollment by as much as 17 percentage points.                

                    We agree with the commenters that students entering the UB program in the 10th grade would have an opportunity to receive UB services for 36 months. We believe that for students without a high academic risk for failure, participation in the UB program for 36 months would increase the postsecondary enrollment rate especially among students who remain in the program until high school graduation. Students that have a high academic risk for failure, on the other hand, require more intensive services and will likely receive a greater benefit by having access to the UB program for four complete years. In addition, a recent evaluation of high school reform models by MDRC (a nonprofit, nonpartisan social policy research organization) suggests that focusing on the critical transition year of ninth grade can make a real difference for students who enter high school with poor academic skills. Quint, Janet,                     *Meeting Five Critical Challenges of High School Reform*                     (May, 2006). Accordingly, we will allow UB projects to select from otherwise eligible students, those students who have completed the 8th grade but not the 10th grade in secondary school, except for the 30 percent of new students who must have a high academic risk for failure. However, expanding the selection of UB program participants to include those students who have completed the 9th grade but not the 10th grade, creates an opportunity for students not selected to participate in the UB program prior to the students' completion of the 9th grade to reapply for UB program participation the following year. To avoid having the same students included as participants in both the control group and the UB program, we have made a change to prohibit such dual participation.                

*Change:*                     We have modified the priority to allow UB projects to select otherwise eligible students who have completed the 8th grade but not the 10th grade in secondary school, except for the 30 percent of new students who must have a high academic risk for failure. The 30 percent of new students who must have a high academic risk for failure must be selected from otherwise eligible students who have completed the 8th grade but not the 9th grade in secondary school. The remaining new students may or may not have a high academic risk for failure and may or may not have completed the 9th grade in secondary school.                

We have also modified the priority to provide that students selected to participate in the control group may not be subsequently selected to participate in the UB program.

*Comment:*                     Some commenters argued that it would be counter-productive and unfair to students if UB projects were not allowed to accept transfer students who participated in the UB program at a previous school because the students have completed the 9th grade.                

*Discussion:*                     The Secretary agrees with the commenters.                

*Change:*                     We have changed the priority to provide that a student who has previously participated in a regular UB project may be selected to continue to participate in the same or different UB project notwithstanding the student's grade level.                

### Select Not Less Than 30 Percent of New Participants From Students Who Have a High Academic Risk for Failure

*Comment:*                     Some commenters applauded the proposal to focus UB services on students with the most need. Others objected to what they view as changes that will turn the UB program into a dropout prevention program instead of a college prep program. Some commenters argued that serving students with a high academic risk for failure unfairly penalizes students who are doing well in school, while others recommended that we expand the definition of high academic risk for failure to include social risks, such as coming from a single parent home or exposure to gang pressure.                

*Discussion:*                     We do not agree that the priority will penalize students for doing well in school. Students doing well academically do not generally need the intensive academic services provided by the UB program and those services are not intended to be a reward for good academic performance. In fact, section 402C(d)(3) of the HEA requires that a determination be made that the student “has a need for                     *academic*                     support in order to pursue successfully a program of education beyond secondary school,” (emphasis added) to provide services to that student.                

We recognize that many students who are doing well in their academic subjects may have additional needs related to social and environmental issues. Those non-academic needs alone, however, are not a basis on which students may be selected to participate in UB. The TRIO Talent Search Program is designed to provide assistance to students who have the potential for success at the postsecondary level, but who need encouragement and other support to pursue a postsecondary education.

*Change:*                     None.                

*Comment:*                     Commenters expressed concern that the targeting of Upward Bound on students with high academic risk for failure as indicated by their grade point average is not supported by the previous national evaluation of Upward Bound.                

*Discussion:*                     We agree that recent evaluation findings suggest that grade point average is an imperfect indicator of educational expectations and of a student's likelihood to benefit from the UB program. Nonetheless, we believe that a low grade point average certainly is one of several possible indicators of a student's need for academic support in order to pursue successfully a program of postsecondary study. Recent research from the national UB program evaluation and other sources (including                     *The Condition of Education 2001*, Indicator 24, which may be reviewed at                     *http://nces.ed.gov/​pubs2001/​2001072_​3.pdf*) suggests another possible indicator of a first-generation student's need for academic support. Specifically, there is evidence that failure to take algebra (or higher) in grade eight or nine may indicate a student's potential to benefit from UB or similar programs.                

*Change:*                     We have modified the priority to allow projects to count a student as at high academic risk for failure if the student has not completed pre-algebra, algebra, or geometry by the end of grade eight, and (in cases in which the student is recruited early during grade nine) if the student is not taking algebra or geometry in grade nine. This criterion further grounds the priority in recent research and gives UB projects a fourth option for identifying the 30 percent of new students who must be at high academic risk for failure.                

*Comment:*                     Several commenters stated that the proposed priority would remove the individual programs' flexibility and create a one-size-fits-all approach that would damage UB's mission of helping needy students gain admission to college.                

*Discussion:*                     Within the parameters of the priority, programs will continue to have flexibility in determining which students are served. We believe that the priority will ensure that the students who receive UB program services are those who most need those services. Under the priority not less than 30 percent of the new participants must be selected from those students who have a high academic risk for failure. The remaining students will continue to be selected from among all eligible                           ( print page 55449)                        students based upon the discretion of the UB project staff.                

*Change:*                     None.                

### Proposed Evaluation

*Comment:*                     One commenter supported including in the priority a requirement to participate in the Department's evaluation of the UB program. The remaining commenters opposed the proposed evaluation. The objections to the proposed priority relating to the evaluation include the following: (a) Several of the commenters stated that they believe many colleges and universities would have reservations about approving “human subjects standards” in their internal review boards, if the review does not demonstrate that members of the control group are “done no harm;” (b) other commenters stated that the control group would not be a true control group, as a true control group would not be referred to other support services and any UB project that does not refer needy students to another student support program or who would try to insulate them from other available academic resources would be unethical and inhuman; and (c) many commenters expressed concern about what they thought would be the undue burden and cost if UB projects were required to recruit twice the number of eligible students to be served, work with twice the number of parents, and were required to encourage students to fill out the forms when the students know that they stand only a 50 percent chance of getting selected.                

*Discussion:*                     We do not share the commenters' concerns about the burdens associated with the evaluation. All plans for data collection and random assignment will be submitted to the evaluator's Institutional Review Board (IRB) and the U.S. Office of Management and Budget (OMB) for their approval to minimize the burden to students and protect the rights of all human subjects. Because the evaluation will be conducted by the Institute of Education Sciences and its contractor, institutions of higher education will not be required to obtain internal review board approval. The UB program only has funds to serve a small percent of the eligible low-income, first-generation students in the U.S., so some eligible and potentially interested students will not be served regardless of whether a random assignment evaluation occurs.                

We did not intend to suggest that control group students would be prohibited from receiving services from other programs. For ethical, legal, and practical reasons, control group students will be free to receive supplemental educational services from numerous other student support programs. The evaluator will carefully measure the variety and intensity of services received by all students in the evaluation in order to interpret the impact of the UB program services, as opposed to the gross impact of other college preparation programs in which students may be involved. The question the evaluation will address is: Does Upward Bound have a benefit, above and beyond the benefit of the other services already available to eligible students applying to the program?

We agree with the commenters that there will likely be some additional burden on grantee staff, particularly during the first year of the evaluation. Some grantees will have to increase their recruiting efforts to meet not only any evaluation requirements, but also the new requirements to focus the program on students who have a high academic risk for failure. On the other hand, casting a wider net for applicants also has significant advantages. It will likely raise the profile of the UB program among eligible students. The extra recruiting required for the evaluation is a one-time effort and seems unlikely to have a lingering effect on program activities. The burden of the new data collection will be borne primarily by the evaluator, not grantees, and the evaluator will work with grantees to minimize any burdens as required for IRB and OMB approval of data collection plans. Any outreach or publicity to obtain enough applications to create the control group will build on grantees' current admission procedures or those proposed as a condition of receiving 2007 grants. As required for IRB and OMB approval of data collection plans, the evaluator will seek informed and written consent from a parent or guardian before a student is included in the evaluation.

*Change:*                     None.                

# Note:

                        This notice does                         *not*                         solicit applications. In any year in which we choose to use this priority, we invite applications through a notice in the                         **Federal Register**                        . A notice soliciting applications for new awards for the UB program for fiscal year 2007 is published elsewhere in this issue of the                         **Federal Register**                        .                     

## Priority

### Absolute Priority:  Upward Bound Program Participant Selection and Evaluation

This priority supports regular Upward Bound Program projects that—

1. Select first-time participants from otherwise eligible students who have completed the 8th grade but not the 10th grade in secondary school, except a student who has previously participated in a regular Upward Bound project may be selected notwithstanding the student's grade level;

2. Select not less than 30 percent of all first-time participants from students who have completed the 8th grade but not the 9th grade in secondary school and who have a “high academic risk for failure.”

“High academic risk for failure” refers to otherwise eligible students who—

a. Have not achieved at the proficient level on State assessments in reading/language arts for grade eight;

b. Have not achieved at the proficient level on State assessments in math for grade eight;

c. Have a grade point average of 2.5 or less (on a 4.0 scale) for the most recent school year for which grade point averages are available; or

d. Have not completed pre-algebra, algebra, or geometry by the end of grade eight, and (in cases in which students are recruited early during grade nine) are not taking algebra or geometry in grade nine.

To meet this priority, an applicant also must agree to conduct its Upward Bound project in a manner consistent with the evaluation that the Department plans to conduct for the Upward Bound Program. An applicant also must agree, if selected to participate in the evaluation, to—

1. Recruit at least twice as many eligible new students in project year 2007-2008 as the grantee plans to serve in its project. Of that larger pool of eligible new students, not less than 30 percent must have completed the 8th grade but not the 9th grade in secondary school and meet the definition of “high academic risk for failure;”

2. Refrain from admitting new students into the Upward Bound project for project year 2007-2008 until the evaluator has completed its data collection and random assignment for those students;

3. Agree that eligible new students will be assigned randomly by the evaluator either to participate in Upward Bound or to serve as part of a control group (not in Upward Bound); and

4. Agree that a student assigned to serve as part of a control group will not be subsequently selected to participate in Upward Bound.

This priority does not apply to the Veterans Upward Bound projects and Upward Bound Math/Science projects.

## Executive Order 12866

                    This notice of final priority has been reviewed in accordance with Executive                           ( print page 55450)                        Order 12866. Under the terms of the order, we have assessed the potential costs and benefits of this regulatory action.                

The potential costs associated with the notice of final priority are those resulting from statutory requirements and those we have determined are necessary for administering this program effectively and efficiently.

In assessing the potential costs and benefits—both quantitative and qualitative—of this notice of final priority, we have determined that the benefits of the proposed priority justify the costs.

We have also determined that this action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.

## Intergovernmental Review

This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

This document provides early notification of our specific plans and actions for this program.

*Applicable Program Regulations:*34 CFR part 645.                

## Electronic Access to This Document

                    You may view this document, as well as all other documents of this Department published in the                     **Federal Register**                    , in text or Adobe Portable Document Format (PDF) on the Internet at the following site:                     *http://www.ed.gov/​news/​fedregister*.                

To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC area at (202) 512-1530.

# Note:

                        The official version of this document is the document published in the                         **Federal Register**                        . Free Internet access to the official edition of the                         **Federal Register**                         and the Code of Federal Regulations is available on GPO Access at:                         *http://www.gpoaccess.gov/​nara/​index.html*.                    

(Catalog of Federal Domestic Assistance Number 84.047A Upward Bound Program)

Program Authority:20 U.S.C. 1070a-13.

Dated: September 19, 2006.

James F. Manning,

Acting Assistant Secretary for Postsecondary Education.

[FR Doc. 06-8101 Filed 9-21-06; 8:45 am]

BILLING CODE 4000-01-P