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[Federal Register: June 3, 2010 (Volume 75, Number 106)]
[Proposed Rules]               
[Page 31338-31340]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03jn10-23]                         

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DEPARTMENT OF EDUCATION

34 CFR Chapter VI

 
Promoting Postbaccalaureate Opportunities for Hispanic Americans 
(PPOHA) Program

AGENCY: Office of Postsecondary Education, Department of Education.

ACTION: Proposed requirements.

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SUMMARY: The Assistant Secretary for Postsecondary Education proposes 
requirements under the PPOHA Program. The Assistant Secretary may use 
one or more of these requirements for competitions in fiscal year (FY) 
2010 and later years. We take this action to establish appropriate 
requirements for the PPOHA Program. We have based these requirements on 
existing rules for the Hispanic-Serving Institutions (HSI) Program, 
authorized by Title V of the Higher Education Act of 1965, as amended 
(HEA), because the PPOHA Program and the HSI Program are governed by 
some common provisions and support similar institutions. We are 
proposing to limit the number of applications an eligible institution 
can submit under the PPOHA to ensure that more HSIs have an opportunity 
for assistance under the PPOHA Program. We are also proposing a 
limitation on the use of PPOHA Program funds for direct student 
assistance to ensure that institutions use the grant funds to best meet 
the broad purposes of the statute.

DATES: We must receive your comments on or before July 6, 2010.

ADDRESSES: Address all comments about this notice to Dr. Maria E. 
Carrington, U.S. Department of Education, 1990 K Street, NW., Room 
6036, Washington, DC 20006-8513.
    If you prefer to send your comments by e-mail, use the following 
address: maria.carrington@ed.gov. You must include the term ``PPOHA 
Program Notice of Proposed Requirements'' in the subject line of your 
electronic message.

FOR FURTHER INFORMATION CONTACT: Dr. Maria E. Carrington: (202) 502-
7548, or by e-mail: maria.carrington@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.

SUPPLEMENTARY INFORMATION: 
    Invitation to Comment: We invite you to submit comments regarding 
this notice. To ensure that your comments have maximum effect in 
developing the notice of final requirements, we urge you to identify 
clearly the specific proposed requirement that each comment addresses.
    We invite you to assist us in complying with the specific 
requirements of Executive Order 12866 and its overall requirement of 
reducing regulatory burden that might result from these proposed 
requirements. Please let us know of any further ways we could reduce 
potential costs or increase potential benefits while preserving the 
effective and efficient administration of the program.
    During and after the comment period, you may inspect all public 
comments about this notice in Room 6036, 1990 K Street, NW., 
Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., 
Washington, DC time, Monday through Friday of each week except Federal 
holidays.
    Assistance to Individuals with Disabilities in Reviewing the 
Rulemaking Record: On request, we will provide an appropriate 
accommodation or auxiliary aid to an individual with a disability who 
needs assistance to review the comments or other documents in the 
public rulemaking record for this notice. If you want to schedule an 
appointment for this type of accommodation or auxiliary aid, please 
contact the person listed under FOR FURTHER INFORMATION CONTACT.
    Purpose of Program: The purposes of the PPOHA Program are to: (1) 
Expand postbaccalaureate educational opportunities for, and improve the 
academic attainment of, Hispanic students; and (2) expand the 
postbaccalaureate academic offerings as well as enhance the program 
quality in the institutions of higher education that are educating the 
majority of Hispanic college students and helping large numbers of 
Hispanic and low-income students complete postsecondary degrees.

    Program Authority: 20 U.S.C.1102-1102c, 20 U.S.C.1161aa-1.

Proposed Requirements

Background

    The PPOHA Program is authorized by Title V, part B, sections 511 
through 514 of the HEA. It was added to the HEA by the Higher Education 
Opportunity Act of 2008, Public Law 110-315. The PPOHA Program supports 
HSIs that offer a postbaccalaureate certificate or degree granting 
program.

[[Page 31339]]

    There are overlapping statutory provisions that govern both the 
PPOHA Program and the HSI Program, which is authorized by sections 501 
to 504 of the HEA. For example, in defining the term ``Hispanic-serving 
institution'' for purposes of the PPOHA Program, Congress adopted the 
definition of that term from the program authority for the HSI Program. 
In addition, the PPOHA Program provides development grants like the HSI 
Program. Congress also applied the general provisions of the HSI 
Program (see sections 521 through 528 of the HEA) to the PPOHA Program.
    In FY 2009, the Department conducted its first grant competition 
under the PPOHA Program. Under the General Education Provisions Act 
(GEPA), the Department can establish requirements for the first 
competition it holds under a new or substantially revised program 
authority without subjecting those requirements to the Administrative 
Procedure Act's rulemaking requirements. (See section 437(d)(1) of 
GEPA). The Department established requirements for the FY 2009 PPOHA 
Program grant competition in a notice inviting applications that it 
published in the Federal Register on June 18, 2009 (74 FR 28913). The 
requirements established for the FY 2009 grant competition included (1) 
using the HSI Program regulations in 34 CFR 606.2(a) and (b) and 34 CFR 
606.3 through 606.5 for purposes of determining eligibility for the 
PPOHA Program and (2) using the ``tie-breaker for development grants'' 
provisions from the HSI Program regulations in 34 CFR 606.23(b)(1) and 
(b)(2). Given the overlap between the PPOHA Program and the HSI 
Program, the Department determined that it was appropriate to use these 
regulations from the HSI program for the PPOHA Program.
    Congress has appropriated $22 million for the PPOHA Program for FY 
2010. To conduct an effective competition using these funds, the 
Department has determined that it is necessary to establish 
requirements for the FY 2010 competition and for future competitions 
under the PPOHA Program. Specifically, we propose again to use the HSI 
Program regulations in 34 CFR 606.2(a) and (b) and 34 CFR 606.3 through 
606.5 for purposes of determining eligibility, and the regulations in 
34 CFR 606.23(b)(1) and (b)(2) for breaking ties for development grants 
in this competition.
    As we explained in the notice inviting applications for the FY 2009 
competition, we believe these requirements are appropriate for the 
following reasons:
    Eligibility Criteria (Use of 34 CFR 606.2(a) and (b), 606.3 through 
606.5). The regulations for the HSI Program (34 CFR part 606) include 
eligibility criteria for a ``Hispanic-serving institution'' as used in 
section 502 of the HEA (20 U.S.C. 1101a). The definition of a 
``Hispanic-serving institution'' in section 502 of the HEA also applies 
to the PPOHA Program. Accordingly, we are using the eligibility 
criteria from the HSI Program (34 CFR 606.2(a) and (b) and 606.3, 
606.4, and 606.5) for the PPOHA Program. The use of these regulations 
will enable applicants under the PPOHA Program to determine whether 
they meet the definitional requirements of an HSI.
    Tie-breaker for Development Grants (Use of 34 CFR 606.23(b)(1) and 
(b)(2)). Through the PPOHA Program, the Department provides development 
grants like those currently awarded under the HSI Program. In light of 
the similar eligibility criteria for these two programs, the Assistant 
Secretary has decided to adopt for the PPOHA Program the regulations 
for tie-breakers used in the HSI Program.
    In addition to the eligibility and tie breaker requirements, we 
also propose to establish the following two additional requirements:
    (1) A limitation on the number of applications an eligible 
institution can submit under the PPOHA Program.
    (2) A limitation on the use of PPOHA Program funds for direct 
student assistance.
    We propose to limit the number of applications an eligible 
institution can submit under the PPOHA Program to one per fiscal year. 
This proposed limitation would ensure that more HSIs have an 
opportunity for assistance under the PPOHA Program.
    We also propose to limit the amount of PPOHA Program funds a 
grantee can use to provide direct student assistance to no more than 20 
percent. While section 513(a)(4) of the HEA allows grant funds to be 
used to support low-income, postbaccalaureate students with 
scholarships, fellowships, and other financial assistance to permit the 
enrollment of these students in postbaccalaureate certificate or 
degree-granting programs, the primary emphasis of the PPOHA Program is 
to expand postbaccalaureate academic offerings and enhance program 
quality rather than to provide direct student financial assistance.

Proposed Requirements

    The Assistant Secretary proposes the following requirements for 
this program. We may apply one or more of these requirements in any 
year in which this program is in effect.

Proposed Requirement 1--Eligibility Criteria (Use of 34 CFR 606.2(a) 
and (b), 606.3 Through 606.5)

    Hispanic-Serving Institution (HSI): To qualify as an eligible HSI 
for the Promoting Postbaccalaureate Opportunities for Hispanic 
Americans (PPOHA) Program under sections 502 and 512(b) of the Higher 
Education Act of 1965, as amended (HEA) (20 U.S.C. 1101a and 1102a), an 
institution of higher education (IHE) must--
    (a) Have an enrollment of needy students, as defined in section 
502(b) of the HEA (section 502(a)(2)(A)(i) of the HEA; 20 U.S.C. 
1101a(a)(2)(A)(i));
    (b) Have, except as provided in section 522(b) of the HEA, average 
educational and general expenditures that are low, per full-time 
equivalent (FTE) undergraduate student, in comparison with the average 
educational and general expenditures per FTE undergraduate student of 
institutions that offer similar instruction (section 502(a)(2)(A)(ii) 
of the HEA; 20 U.S.C. 1101a(a)(2)(A)(ii));

    Note: To demonstrate an enrollment of needy students and low 
average educational and general expenditures per FTE undergraduate 
student, an IHE must be designated as an ``eligible institution'' in 
accordance with 34 CFR 606.3 through 606.5 and the notice inviting 
applications for designation as an eligible institution for the 
fiscal year for which the grant competition is being conducted.

    (c) Be accredited by a nationally recognized accrediting agency or 
association that the Secretary has determined to be a reliable 
authority as to the quality of education or training offered, or making 
reasonable progress toward accreditation, according to such an agency 
or association (section 502(a)(2)(A)(iv) of the HEA; 20 U.S.C. 
1101a(a)(2)(A)(iv));
    (d) Be legally authorized to provide, and provide within the State, 
an educational program for which the institution awards a bachelor's 
degree (section 502(a)(2)(A)(iii) of the HEA; 20 U.S.C. 
1101a(a)(2)(A)(iii)); and
    (e) Have an enrollment of undergraduate FTE students that is at 
least 25 percent Hispanic students at the end of the award year 
immediately preceding the date of application (section 502(a)(5)(B) of 
the HEA; 20 U.S.C. 1101a(a)(5)(B)).

    Note 1: Funds for the PPOHA Program will be awarded each fiscal 
year; thus, for this program, the ``end of the award year 
immediately preceding the date of application'' refers to the end of 
the fiscal year prior to the application due date. The

[[Page 31340]]

end of the fiscal year occurs on September 30 for any given year.

    Note 2: In considering applications for grants under this 
program, the Department will compare the data and documentation the 
institution relied on in its application with data reported to the 
Department's Integrated Postsecondary Education Data System (IPEDS), 
the IHE's State-reported enrollment data, and the institutional 
annual report. If different percentages or data are reported in 
these various sources, the institution must, as part of the 
eligibility process, explain the reason for the differences. If the 
IPEDS data show that less than 25 percent of the institution's 
undergraduate FTE students are Hispanic, the burden is on the 
institution to show that the IPEDS data are inaccurate. If the IPEDS 
data indicate that the institution has an undergraduate FTE less 
than 25 percent, and the institution fails to demonstrate that the 
IPEDS data are inaccurate, the institution will be considered 
ineligible.

Proposed Requirement 2--Use of Tie-Breaking Factors

    To resolve ties in the reader scores of applications for 
development grants, the Department will award one additional point to 
an application from an institution of higher education (IHE) that has 
an endowment fund for which the market value per full-time equivalent 
(FTE) student is less than the comparable average current market value 
of the endowment funds per FTE student at similar type IHEs. In 
addition, to resolve ties in the reader scores of applications for 
PPHOA development grants, the Department will award one additional 
point to an application from an IHE that has expenditures for library 
materials per FTE student that are less than the comparable average 
expenditures for library materials per FTE student at similar type 
IHEs. (34 CFR 606.23(a)(1) and (2)).
    For the purpose of these funding considerations, we will use 2008-
2009 data.
    If a tie remains after applying the tie-breaker mechanism above, 
priority will be given for Individual Development Grants to applicants 
that have the lowest endowment values per FTE student. (34 CFR Sec.  
606.23(b)(1))

Proposed Requirement 3--Limit on Applications From an Eligible 
Institution

    In any fiscal year, an eligible institution may submit only one 
application for a grant under the PPOHA Program. This restriction is 
intended to ensure that more Hispanic-serving institutions have an 
opportunity for assistance under Title V of the Higher Education Act of 
1965, as amended.

Proposed Requirement 4--Limit on Use of Funds for Direct Student 
Assistance

    A PPOHA Program grantee may use no more than 20 percent of its 
total PPOHA Program grant award to provide financial support--in the 
form of scholarships, fellowships, and other student financial 
assistance--to low-income students.
    Final Requirements: We will announce the final requirements in a 
notice in the Federal Register. We will determine the final 
requirements after considering responses to this notice and other 
information available to the Department. This notice does not preclude 
us from proposing additional requirements subject to meeting applicable 
rulemaking requirements.

    Note: This notice does not solicit applications. In any year in 
which we choose to use one or more of these requirements, we invite 
applications through a notice in the Federal Register.

    Executive Order 12866: This notice has been reviewed in accordance 
with Executive Order 12866. Under the terms of the order, we have 
assessed the potential costs and benefits of this proposed regulatory 
action.
    The potential costs associated with this proposed regulatory action 
are those resulting from statutory requirements and those we have 
determined as necessary for administering this program effectively and 
efficiently.
    In assessing the potential costs and benefits--both quantitative 
and qualitative--of this proposed regulatory action, we have determined 
that the benefits of the proposed requirements justify the costs.
    We have determined, also, that this proposed regulatory 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.
    Accessible Format: Individuals with disabilities can obtain this 
document in an accessible format (e.g., braille, large print, 
audiotape, or computer diskette) on request to the program contact 
person listed under FOR FURTHER INFORMATION CONTACT.
    Electronic Access to This Document: You can 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.

    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.

    Delegation of Authority: The Secretary of Education has delegated 
authority to Daniel T. Madzelan, Director, Forecasting and Policy 
Analysis for the Office of Postsecondary Education, to perform the 
functions and duties of the Assistant Secretary for Postsecondary 
Education.
    Catalog of Federal Domestic Assistance (CFDA) Number: 84.031M.

    Dated: May 25, 2010.
Daniel T. Madzelan,
Director, Forecasting and Policy Analysis.
[FR Doc. 2010-13318 Filed 6-2-10; 8:45 am]
BILLING CODE 4000-01-P
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