NPRM 'Provisions; Teacher Education Assistance for College and Higher Education (TEACH) Grant Program'

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Federal Register / Vol. 74, No. 83 / Friday, May 1, 2009 / Rules and Regulations

The first page of each such document
shall be clearly and accurately labeled
‘‘Public’’, ‘‘In Camera’’, or
‘‘Confidential’’.
(c) Paper and electronic copies of and
service of filings before the Commission
or an Administrative Law Judge in
adjudicative proceedings.
(1) Each document filed before the
Commission or an Administrative Law
Judge in an adjudicative proceeding,
except documents covered by
§ 4.2(a)(1)(i), shall be filed with the
Secretary of the Commission; shall
comply with the requirements of
§ 4.2(b); and shall include a paper
original (in 12-point font with 1-inch
margins), one paper copy (if before the
Administrative Law Judge) or twelve
(12) paper copies (if before the
Commission), and an electronic copy in
Adobe portable document format or
such other format as the Secretary may
direct.
(2) If the document is labeled ‘‘In
Camera’’ or ‘‘Confidential’’, it must
include as an attachment either a
motion requesting in camera or other
confidential treatment, in the form
prescribed by § 3.45, or a copy of a
Commission, Administrative Law Judge,
or federal court order granting such
treatment. The document must also
include as a separate attachment a set of
only those pages of the document on
which the in camera or otherwise
confidential material appears and
comply with all other requirements of
§ 3.45 and any other applicable rules
governing in camera treatment.
(3)(i) If the document is labeled
‘‘Public’’, the electronic copy shall be
filed as the Secretary shall direct, or
through such electronic system as the
Commission may provide.
(ii) If the document is labeled ‘‘In
Camera’’ or ‘‘Confidential’’, the
electronic copy shall be submitted on a
compact disc (CD) or digital video disc
(DVD) so labeled, which shall be
physically attached to the paper
original, and shall not be transmitted to
the Commission by e-mail or any other
electronic system.
(iii) Each electronic copy filed
pursuant to § 4.2(c)(1) shall include a
certification by the filing party that the
copy is a true and correct copy of the
paper original, and that a paper copy
with an original signature is being filed
with the Secretary of the Commission
on the same day by other means.
(4) Sensitive personal information, as
defined in § 3.45(b), shall not be
included in, and must be redacted or
omitted from, filings where the filing
party determines that such information
is not relevant or otherwise necessary
for the conduct of the proceeding.

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(5) A paper copy of each document
filed in accordance with this section in
an adjudicative proceeding shall be
served by the party filing the document
or person acting for that party on all
other parties pursuant to § 4.4, at or
before the time the original is filed.
(d) Paper and electronic copies of
other documents filed with the
Commission. Each paper or electronic
document filed with the Commission,
and not covered by § 4.2(a)(1)(i),
§ 4.2(a)(1)(ii), or § 4.2(c), shall be filed
with the Secretary of the Commission,
and shall be clearly and accurately
labeled as required by § 4.2(b).
(1) Each such paper document shall
be signed, and shall be accompanied by
an electronic copy on a compact disc
(CD) or digital video disc (DVD) in
Adobe portable document format or
such other format as the Secretary shall
direct.
(2) Each such document filed
pursuant to § 2.7(d), § 2.7(f), § 2.41(f), or
§ 2.51 shall also include twelve (12)
paper copies of the signed paper
original.
(3) Each such document labeled
‘‘Public’’ may be placed on the public
record of the Commission at the time it
is filed.
(4) If such a document is labeled
‘‘Confidential’’, and it is filed pursuant
to § 2.7(d), § 2.7(f), § 2.41(f), or § 2.51, it
will be rejected for filing pursuant to
§ 4.2(g), and will not stay compliance
with any applicable obligation imposed
by the Commission or the Commission
staff, unless the filer simultaneously
files:
(i) An explicit request for confidential
treatment that includes the factual and
legal basis for the request, identifies the
specific portions of the document to be
withheld from the public record,
provides the name and address of the
person(s) who should be notified in the
event the Commission determines to
disclose some or all of the material
labeled ‘‘Confidential’’, and otherwise
conforms to the requirements of § 4.9(c);
and
(ii) A redacted public version of the
document that is clearly labeled
‘‘Public’’.
*
*
*
*
*
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. E9–9972 Filed 4–30–09: 8:45 am]
BILLING CODE 6750–01–S

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DEPARTMENT OF EDUCATION
34 CFR Parts 668, 686, 690, and 691
RIN 1840–AC96
[Docket ID ED–2009–OPE–0001]

Student Assistance General
Provisions; Teacher Education
Assistance for College and Higher
Education (TEACH) Grant Program;
Federal Pell Grant Program; Academic
Competitiveness Grant Program and
National Science and Mathematics
Access To Retain Talent Grant
Program
AGENCY: Office of Postsecondary
Education, Department of Education.
ACTION: Interim final rule; request for
comments.
SUMMARY: The Secretary amends the
regulations for the Academic
Competitiveness Grant (ACG) and
National Science and Mathematics
Access to Retain Talent Grant (National
SMART Grant) Programs. These interim
final regulations are needed to
implement provisions of the Higher
Education Act of 1965 (HEA), as
amended by the Ensuring Continued
Access to Student Loans Act of 2008
(ECASLA) and the Higher Education
Opportunity Act of 2008 (HEOA). The
new statutory provisions are effective
July 1, 2009. The Secretary also amends
the regulations in the Student
Assistance General Provisions, and the
regulations for the Teacher Education
Assistance for College and Higher
Education (TEACH) Grant Program and
the Federal Pell Grant Program to
implement conforming changes based
on the statutory amendments to the
ACG and National SMART Grant
programs.
DATES: These regulations are effective
July 1, 2009. We must receive your
comments on or before June 1, 2009.
ADDRESSES: Submit your comments
through the Federal eRulemaking Portal
or via postal mail, commercial delivery,
or hand delivery. We will not accept
comments by fax or by e-mail. Please
submit your comments only one time, in
order to ensure that we do not receive
duplicate copies. In addition, please
include the Docket ID at the top of your
comments.
• Federal eRulemaking Portal: Go to
http://www.regulations.gov to submit
your comments electronically.
Information on using Regulations.gov,
including instructions for accessing
agency documents, submitting
comments, and viewing the docket is
available on the site under ‘‘How To Use
This Site.’’

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Federal Register / Vol. 74, No. 83 / Friday, May 1, 2009 / Rules and Regulations
• Postal Mail, Commercial Delivery,
or Hand Delivery: If you mail or deliver
your comments about these interim final
regulations, address them to Sophia
McArdle, U.S. Department of Education,
1990 K Street, NW., room 8019,
Washington, DC 20006–8544.

Privacy Note: The Department’s policy for
comments received from members of the
public (including those comments submitted
by mail, commercial delivery, or hand
delivery) is to make these submissions
available for public viewing in their entirety
on the Federal eRulemaking Portal at

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http://www.regulations.gov. Therefore,
commenters should be careful to include in
their comments only information that they
wish to make publicly available on the
Internet.
FOR FURTHER INFORMATION CONTACT:

Topic

Contact person and information

General information and information related to rigorous secondary
school programs and eligible majors.
Information related to grade level progression ........................................

Sophia McArdle. Telephone: (202) 219–7078 or via the Internet:
[email protected].
Fred Sellers. Telephone: (202) 502–7502 or via the Internet:
[email protected].
Jacquelyn Butler. Telephone: (202) 502–7890 or via the Internet:
[email protected].
Carney McCullough. Telephone: (202) 502–7639 or via the Internet:
[email protected].

Information related to payments for part-time students ...........................
Information related to prior enrollment .....................................................

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 may
obtain this document in an accessible
format (e.g., braille, large print,
audiotape, or computer diskette) on
request to the first contact person listed
under FOR FURTHER INFORMATION
CONTACT.
SUPPLEMENTARY INFORMATION:

Invitation To Comment
We invite you to submit comments
regarding these interim final
regulations. To ensure that your
comments have maximum effect in
developing the final regulations, we
urge you to identify clearly the specific
section or sections of the interim final
regulations that each of your comments
addresses and to arrange your comments
in the same order as the interim final
regulations.
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 interim final regulations. Please
let us know of any further opportunities
we should take to 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 these interim final regulations by
accessing Regulations.gov. You may also
inspect the comments, in person, in
room 8019, 1990 K Street, NW.,
Washington, DC, between the hours of
8:30 a.m. and 4 p.m., Eastern time,
Monday through Friday of each week
except Federal holidays.

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Assistance to Individuals With
Disabilities in Reviewing the
Rulemaking Record
On request, we will supply an
appropriate aid, such as a reader or
print magnifier, to an individual with a
disability who needs assistance to
review the comments or other
documents in the public rulemaking
record for these interim final
regulations. If you want to schedule an
appointment for this type of aid, please
contact the first person listed under FOR
FURTHER INFORMATION CONTACT.
Background
These interim final regulations
implement certain provisions of the
HEA, as amended by the ECASLA (Pub.
L. 110–227) and the HEOA (Pub. L. 110–
315), which become effective on July 1,
2009. The ECASLA makes ACGs and
National SMART Grants available to
eligible non-citizens and students
enrolled at least half-time, provides that
maximum ACG and National SMART
Grant awards for part-time students be
proportionally reduced consistent with
the requirements in the Federal Pell
Grant Program, and requires grant
awards and payments to be determined
on the same basis as in the Federal Pell
Grant Program. Furthermore, the
ECASLA provides that grant awards be
based on a student’s grade level, instead
of academic year. Additionally, the
ECASLA authorizes the award of ACGs
for students enrolled in a one- or twoyear certificate program at a degreegranting institution and allows students
who were once enrolled in an
undergraduate program as part of a
secondary school program of study to
receive a first-year ACG if the student is
otherwise eligible. Finally, the ECASLA
creates three additional program options
by which students can qualify for a
National SMART Grant. The HEOA
amends the method by which secondary

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school programs of study are
determined to be rigorous, while
maintaining rigorous programs
previously recognized by the Secretary
in regulations.
Waiver of Rulemaking
Under the Administrative Procedure
Act (APA) (5 U.S.C. 553), the
Department is generally required to
publish a notice of proposed rulemaking
and provide the public with an
opportunity to comment on proposed
regulations prior to establishing a final
rule. In addition, all Department
regulations for programs authorized by
Title IV of the HEA (Title IV, HEA
programs) are subject to the negotiated
rulemaking requirements of section 492
of the HEA.1
Section 402(b) of the HEOA waives
the negotiated rulemaking requirements
in section 492 of the HEA (as well as the
master calendar requirements in section
482 of the HEA) for changes made to the
ACG and National SMART Grant
Programs in both the ECASLA and in
the HEOA. Consequently, the negotiated
rulemaking requirements in section 492
of the HEA do not apply to the interim
final regulations in this notice and we
will not subject them to negotiated
rulemaking.
We are waiving the notice-andcomment rulemaking requirements
under the APA. The APA provides that
an agency is not required to conduct
notice-and-comment rulemaking when
the agency for good cause finds that
notice and public procedure thereon are
impracticable, unnecessary, or contrary
to the public interest. Although these
regulations are subject to the APA’s
notice-and-comment requirements, the
1 Section 492 provides specifically that any
regulations issued for the Title IV, HEA programs
shall be subject to negotiated rulemaking to obtain
the advice of and recommendations from
individuals and groups involved in the student
financial assistance programs.

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Secretary has determined that it would
be impracticable to conduct notice-andcomment rulemaking in time to
implement these changes for the 2009–
2010 award year. Waiver of rulemaking
under the impracticability exemption in
the APA is warranted because it would
not be possible for the Department to
comply with the APA’s rulemaking
mandates and execute its statutory
duties under the HEA, as amended by
the ECASLA and the HEOA.2 The
Department cannot both implement
these changes to the ACG and National
SMART Grant programs, including
making awards to eligible students, by
the beginning of the 2009–2010 award
year, and conduct notice-and-comment
rulemaking for the regulations for these
programs.
In the ECASLA, enacted on May 7,
2008, Congress made a number of
changes to the ACG and National
SMART Grant programs that were to be
effective on January 1, 2009. On August
14, 2008, Congress enacted the HEOA,
which amended some of the changes
made in the ECASLA and made
additional changes. The HEOA provides
that amendments made by the ECASLA
and HEOA are effective July 1, 2009.
The Department therefore has a short
window to plan the administration of
the changes and make awards consistent
with those changes for the 2009–2010
award year.
Even on an extremely expedited
timeline, the Department could not
feasibly conduct notice-and-comment
rulemaking and then promulgate final
regulations in time to make awards for
the 2009–2010 award year. Publishing a
notice of proposed rulemaking,
reviewing the public comments, and
issuing final regulations normally takes
at least six months, and this could not
be accomplished prior to the statutory
July 1, 2009 effective date.
In addition to developing and issuing
these regulations, there are a number of
other steps necessary for the Department
to implement the changes to the ACG
and National SMART Grant programs
for the 2009–2010 award year that make
rulemaking impracticable.
Implementation requires the
Department to make a number of
2 See Riverbend Farms, Inc. v. Madigan, 958 F.2d
1479, 1484, n.2 (9th Cir. 1992). The term
‘‘impracticable’’ has also been described as meaning
‘‘a situation in which the due and required
execution of the agency functions would be
unavoidably prevented by its undertaking
rulemaking proceedings.’’ Zhang v. Slattery, 55
F.3d 732, 746 (2d Cir. 1995), citing National
Nutritional Foods Ass’n v. Kennedy, 572 F.2d 377,
385 (2d Cir. 1978), citing S. Rep. No. 752, 79th
Cong., 1st Sess. (1945). See also New Jersey Dept of
Envtl. Prot. v. U.S. EPA, 626 F.2d 1038, 1046 (D.C.
Cir. 1980).

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changes to the Department’s financial
aid systems so that students can apply
for and receive ACGs and National
SMART Grants for which they are
eligible. The process of completing all of
these steps and developing program
regulations through notice-andcomment rulemaking requires far more
time than that available to the
Department in order to make awards to
students for the upcoming 2009–2010
award year.
Based upon this information, and in
order to make timely grant awards for
the 2009–2010 award year, the Secretary
is issuing these interim final regulations
without first publishing proposed
regulations for public comment.
Although the Department is adopting
these regulations on an interim final
basis, the Department requests public
comment on these regulations. After
consideration of public comments, the
Secretary will publish final regulations.
Significant Regulations
We discuss substantive issues under
the sections of the interim final
regulations to which they pertain.
Generally, we do not address regulatory
provisions that are technical or
otherwise minor in effect.
Definitions (§ 691.2)
ACG and National SMART Grant
Scheduled Award
Statute: Section 10 of the ECASLA
amends section 401A of the HEA by
replacing the term ‘‘academic year’’
with the term ‘‘year’’ in those provisions
related to determining a student’s
period of eligibility for an ACG or a
National SMART Grant (e.g., section
401A(b), (c)(3), (d)(1)(A)(iii), and (d)(2)
of the HEA). Section 10 of the ECASLA
also amends section 401A of the HEA by
adding a third year of eligibility for
National SMART Grants for any
otherwise eligible student enrolled in a
program with at least five full years of
coursework (see section 401A(c)(3)(E)).
Current Regulations: Current
§ 691.2(d) defines an ACG or National
SMART Grant Scheduled Award as the
amount that would be paid to a full-time
student for a full academic year.
Regulations: We are amending the
definitions in § 691.2(d) to provide that
an ACG Scheduled Award is the
maximum amount of an ACG that
would be paid to a full-time first-year
student or a full-time second-year
student for the applicable year. A
National SMART Grant Scheduled
Award is the maximum amount of a
National SMART Grant that would be
paid to a full-time third-year, fourthyear, or fifth-year student for the
applicable year.

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Reason: We are amending these
definitions to reflect the statutory
change that a student’s eligibility for a
grant is based on his or her grade level
as a first-, second-, third-, fourth-, or
fifth-year student, rather than the
student’s academic year.
Annual Award
Statute: Section 10(a)(3) of the
ECASLA amends section 401A(c) of the
HEA to provide that a student enrolled
or accepted for enrollment in an
institution of higher education on not
less than a half-time basis may be an
eligible student (see section 401A(c)(3)
of the HEA). Prior to the ECASLA, only
full-time students were eligible.
Current Regulations: None.
Regulations: We are amending
§ 691.2(d) to define the term annual
award as the maximum ACG or National
SMART Grant amount a student would
receive for enrolling as a full-time,
three-quarter-time, or half-time student
and remaining in that enrollment status
for one year.
Reason: We are adding this definition,
in conjunction with other changes to
Subpart F (Determination of Awards) of
part 691, to ensure compliance with the
statutory requirement that a student’s
payments be adjusted based on the
student’s enrollment status during a
payment period.
Eligible Major
Statute: Section 10(a)(3)(C)(v) of the
ECASLA amends the HEA by adding a
new section 401A(c)(3)(D), which
extends eligibility for a National
SMART Grant to a student enrolled in
a qualifying liberal arts curriculum.
Prior to this statutory change, an eligible
major for a National SMART Grant was
a major in the physical, life, or
computer sciences, mathematics,
technology, or engineering (as
determined by the Secretary pursuant to
regulations), or a foreign language that
the Secretary, in consultation with the
Director of National Intelligence,
determines is critical to the national
security of the United States.
Current Regulations: Current
§ 691.2(d) defines the term eligible
major, for purposes of the National
SMART Grant Program, as a major, as
determined by the Secretary under
§ 691.17, in one of the physical, life, or
computer sciences, mathematics,
technology, engineering, or a critical
foreign language.
Regulations: We are amending the
definition of the term eligible major to
include, in addition to majors in
physical, life, or computer sciences,
mathematics, technology, engineering or
a critical foreign language, a qualifying

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liberal arts curriculum as determined by
the Secretary under new § 691.17(b).
Reason: The amendments to the
definition of the term eligible major
implement the new statutory provision
that a student may be eligible for a
National SMART Grant by enrolling in
a qualifying liberal arts curriculum.
Eligible Program
Statute: Section 10(a)(3)(C)(ii) of the
ECASLA amends section 401A(c)(3) of
the HEA by providing that an eligible
student enrolled in an institution of
higher education in an undergraduate
certificate program at least one year in
length may be eligible for an ACG (see
section 401A(c)(3)(A) of the HEA).
Section 10(a)(3)(C)(v) of the ECASLA
also amends section 401A(c)(3) of the
HEA to provide that a student enrolled
in a program at a degree-granting
institution of higher education that
requires at least five full years of
coursework may be eligible for a
National SMART Grant in his or her
fifth—as well as third and fourth—year
of enrollment (see section 401A(c)(3)(E)
of the HEA).
Current Regulations: Current
§ 691.2(d) defines the term eligible
program as an eligible program, as
defined in 34 CFR 668.8, that (a) for the
ACG Program, leads to an associate’s or
bachelor’s degree, is a two-academicyear program acceptable for full credit
toward a bachelor’s degree, or is a
graduate degree program that includes
at least three academic years of
undergraduate education or (b) for the
National SMART Grant Program, leads
to a bachelor’s degree in an eligible
major or is a graduate degree program in
an eligible major that includes at least
three academic years of undergraduate
education.
Regulations: We are amending the
definition of an eligible program in
§ 691.2 to include, for the ACG Program,
an undergraduate certificate program of
at least one academic year in length. We
are also amending the definition of the
term eligible program to include a
degree program with at least five full
undergraduate years of coursework at a
degree-granting institution of higher
education (a student in this type of
program would be eligible for a National
SMART Grant for the third, fourth, and
fifth years of the program). In order to
be consistent with the statutory changes
regarding the inclusion of five-year
programs under the National SMART
Grant Program, we are amending the
definition of eligible program to clarify
that a five-year program is an eligible
program if—(a) an appropriate official of
an institution of higher education with
authority to approve curricula certifies

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that the program requires at least five
full undergraduate years of coursework
to complete (as documented in the
institution’s records), and (b) each year
of the program, including the fifth year,
is not less than 24 semester hours, 36
quarter credits, or 900 clock hours.
Paragraph (2)(ii)(C) of the definition
clarifies that a program with a
qualifying liberal arts curriculum
identified as an eligible major under
§ 691.17(b) is not eligible as a five-year
program.
Reason: We are amending the
definition of the term eligible program
to implement the statutory changes that
a student may be eligible for an ACG if
the student is enrolled in a certificate
program at least one academic year in
length and that a student may be eligible
for a National SMART Grant for his or
her fifth year in an eligible five-year
program.
We are amending the definition of the
term eligible program, for purposes of
the ACG Program, to include
undergraduate programs of at least one
academic year in length leading to a
certificate. While the statutory language
refers to ‘‘a program of not less than one
year for which the institution awards a
certificate,’’ we believe that the
minimum length of the program should
be tied to an ‘‘academic year,’’ and not
a ‘‘year.’’ This is because to qualify as
an institution of higher education under
34 CFR 600.4(a)(4)(iii) of the
institutional eligibility regulations, an
institution must offer a certificate
program that is at least one academic
year in length.
With respect to the fifth-year National
SMART Grant, the certification
requirement reflected in new paragraph
(2)(ii)(A) of the definition is required by
section 401A(c)(3)(E) of the HEA. The
requirement that the certification be
documented in the institution’s records
is intended to avoid any additional
reporting burden on institutions.
First-, Second-, Third-, Fourth-, and
Fifth-Year
Statute: Section 10 of the ECASLA
amends section 401A of the HEA by
replacing the term ‘‘academic year’’
with the term ‘‘year’’ in those provisions
related to determining a student’s
period of eligibility for an ACG or a
National SMART Grant (e.g., section
401A(b), (c)(3), (d)(1)(A)(iii) and (d)(2)
of the HEA). Section 10 of the ECASLA
also amends section 401A of the HEA by
adding a third year of eligibility for
National SMART Grants for any
otherwise eligible student enrolled in a
program with five full years of
coursework (see section 401A(c)(3)(E)).
Current Regulations: None.

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Regulations: We are adding a new
§ 691.2(e)(1) to define the terms ‘‘firstyear,’’ ‘‘second-year,’’ ‘‘third-year,’’
‘‘fourth-year,’’ and ‘‘fifth-year’’ as a
student’s grade level in the student’s
eligible program as determined by the
institution for all students in the eligible
program. We are also adding a new
§ 691.2(e)(2) to provide that a student’s
grade level for purposes of the ACG and
National SMART Grant programs must
be the same grade level used for
determining annual loan limits under
the FFEL and Direct Loan programs (34
CFR parts 682 and 685).
Reason: New § 691.2(e)(1) implements
the statutory change from use of
‘‘academic year’’ to ‘‘year.’’ It is
necessary for the Department to clarify
that, in using the term ‘‘year,’’ we mean
the student’s grade level. New
§ 691.2(e)(2) ensures the consistent
treatment of students in all Title IV,
HEA programs.
Duration of Student Eligibility—
Undergraduate Course of Study
(§ 691.6)
Statute: Section 10 of the ECASLA
amends section 401A of the HEA to
provide that an eligible student may
only receive one ACG for each of the
first or second years of an
undergraduate program and one
National SMART Grant for each of the
third, fourth, or fifth years of a
bachelor’s degree program, rather than
the first, second, third, or fourth
academic year of the program (see
section 401A(c)(3) of the HEA). In
addition, section 10 of the ECASLA
amends section 401A of the HEA by
adding a new paragraph (c)(3)(E) to
provide that a student may be eligible
for a third National SMART Grant for
enrollment in the fifth year of an
undergraduate baccalaureate program if
that program requires at least five full
years of coursework.
Current Regulations: Current § 691.6
bases the duration of student eligibility
for the ACG and National SMART Grant
programs on academic year and restricts
a student to one grant for each of his or
her first, second, third, or fourth
academic years of enrollment in an
eligible program.
Regulations: We are amending § 691.6
to provide that a student is eligible for
one ACG Scheduled Award while
enrolled as a first-year student, one ACG
Scheduled Award while enrolled as a
second-year student, one National
SMART Grant Scheduled Award while
enrolled as a third-year student, one
National SMART Grant Scheduled
Award while enrolled as a fourth-year
student, and, in the case of a program
with at least five full years of

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coursework, one National SMART Grant
Scheduled Award while enrolled as a
fifth-year student. We are providing that
a fourth-year student, enrolled in a
National SMART Grant-eligible program
with less than five full years of
coursework, continues to be a fourthyear student until he or she completes
his or her first undergraduate
baccalaureate course of study. We are
also providing that a fifth-year student,
enrolled in a National SMART Granteligible program with at least five full
years of coursework, continues to be a
fifth-year student until he or she has
completed his or her first undergraduate
baccalaureate course of study.
Reason: These interim final
regulations implement the changes to
the HEA by providing that the duration
of a student’s eligibility is based on the
student’s year in postsecondary
education, consistent with the use of
this term in the FFEL and Direct Loan
programs, rather than the number of
academic years the student has
completed.
Under the amendments to § 691.6, a
student’s eligibility is based on the
student’s grade level rather than
academic year. This change in
implementation of the ACG and
National SMART Grant programs will
begin in the 2009–2010 award year. We
believe that awards for some continuing
students may be affected as they
progress to the comparable point in
grade level that they were previously
deemed to have reached in an academic
year. However, most of these students
will still be eligible to receive the same
amount of grant funds over their entire
period of enrollment. A student who
received a third-academic-year National
SMART Grant Scheduled Award in the
2008–2009 award year, for example,
may now be considered to be in the
second-year grade level of his or her
National SMART Grant-eligible program
in the 2009–2010 award year. That
student would no longer be eligible for
a National SMART Grant until the
student advances to the fourth year of
his or her National SMART Granteligible program. However, in this
example, although the student has
already received a third-year National
SMART Grant Scheduled Award, the
student may be paid for any remaining
eligibility for a second-year ACG
Scheduled Award, if otherwise eligible,
because only the student’s grade level is
the determining factor, without regard
to any particular progression.
Some of these students, however, will
no longer be eligible to receive the same
amount of grant funds over their entire
period of enrollment. For example, a
student who initially enrolled in the fall

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of 2008 with 30 semester hours based on
Advanced Placement courses and
received a first-academic-year ACG
Scheduled Award in the 2008–2009
award year while earning an additional
30 semester hours, may now be
considered to be in the third-year grade
level of his or her eligible program in
the 2009–2010 award year and would
not be eligible for a second-year ACG in
2009–2010. The student could receive a
third-year National SMART Grant, if he
or she met other eligibility criteria.
The provision that a fourth-year
student enrolled in a National SMART
Grant-eligible program with less than
five full years of coursework continues
to be considered a fourth-year student
until he or she completes his or her first
undergraduate baccalaureate course of
study, and that a fifth-year student in a
five-year program continues to be a
fifth-year student until he or she
completes his or her undergraduate
baccalaureate course of study is
designed to provide students with the
greatest amount of National SMART
Grant funds possible, by allowing a
student who was ineligible for some
part of his or her fourth or fifth year to
obtain a fourth- or fifth-year award.
For example, a student is enrolled in
a program that requires full-time
attendance for nine semesters, and a
student normally completes a grade
level by successfully completing two
semesters of coursework. In the fall of
2008, the student begins her fourth year
and completes the 2008–2009 fall and
spring terms which are the seventh and
eighth semesters of the student’s
program. During the 2008–2009 award
year, the student did not receive a
Federal Pell Grant, and as a result none
of the fourth-year National SMART
Grant Scheduled Award was disbursed.
In the fall term of 2009, the student
enrolls for the final semester of her
program and receives a Federal Pell
Grant. For the fall term, as part of the
extended fourth year, the student would
also receive a National SMART Grant
disbursement from the fourth-year
National SMART Grant Scheduled
Award, if otherwise eligible.
Enrollment Status for Students Taking
Regular and Correspondence Courses
(§ 691.8)
Statute: The statute does not address
how taking correspondence courses
affects a student’s enrollment status in
an eligible program. Section 10(c)(2) of
the ECASLA, however, amends section
401A(c)(2) of the HEA to provide that a
student may be eligible for an ACG or
a National SMART Grant if he or she is
enrolled or accepted for enrollment in
an institution of higher education on at

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least a half-time basis. Before the
ECASLA, only full-time students were
eligible for grants under these programs.
Current Regulations: Current § 691.8
sets forth the circumstances under
which correspondence courses may be
applied toward a student’s full-time
enrollment status in an eligible program.
Regulations: We are amending § 691.8
to describe how correspondence courses
may be applied toward a student’s
enrollment status (i.e., as a half-time,
three-quarter-time, and full-time
student) in an eligible program.
Reason: Because the statute now
allows students enrolled or accepted for
enrollment in an institution of higher
education on at least a half-time basis to
be eligible for an ACG or a National
SMART Grant, it is necessary to make
changes to § 691.8, regarding how
correspondence courses may be applied
to a student’s less-than-full-time
enrollment in an eligible program.
Citizenship and Student Eligibility
(§§ 668.33 and 691.15)
Statute: Section 10(a)(3) of the
ECASLA amends section 401A(c) of the
HEA by removing the requirement that
a student be a U.S. citizen to be eligible
for an ACG or a National SMART Grant.
Current Regulations: Current
§§ 691.15(a)(1) and 668.33(c) provide
that a student must be a U.S. citizen to
be eligible to receive an ACG or a
National SMART Grant.
Regulations: We are removing the
provisions in §§ 691.15(a)(1) and
668.33(c) that only U.S. citizens are
eligible to receive ACGs or National
SMART Grants.
Reason: These amendments reflect the
statutory change that eliminates the
requirement that only students who are
U.S. citizens may qualify for assistance
under the ACG and National SMART
Grant programs. Moreover, this change
is consistent with section 484(a)(5) of
the HEA, which provides that a student
who is not a United States citizen or
national but who can provide evidence
that he or she is in the United States for
other than a temporary purpose with the
intention of becoming a citizen or
permanent resident may qualify as an
eligible student for the Title IV, HEA
programs.
Enrollment Status and Student
Eligibility (§§ 668.32, 691.2, 691.15,
691.76, and 691.80)
Statute: Section 10(a)(3) of the
ECASLA amends section 401A(c) of the
HEA to remove the requirement that a
student be enrolled full-time to receive
an ACG or a National SMART Grant.
Instead, a student must be enrolled at

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least half-time in order to receive an
ACG or a National SMART Grant.
Current Regulations: Current
§ 691.15(a)(3) provides that a student
must be enrolled full-time in order to be
eligible to receive an ACG or a National
SMART Grant.
Regulations: We are removing from
§ 691.15(a) the requirement that a
student be enrolled full-time to be
eligible to receive an ACG or a National
SMART Grant. Also, we are amending
the general student eligibility
requirements for the Title IV, HEA
programs in § 668.32(a)(2) by adding the
ACG and National SMART Grant
programs to the list of programs that
require students to be enrolled at least
half-time.
We are also amending the list of
definitions used in the ACG and
National SMART Grant regulations to
refer to the existing definitions of the
terms half-time student and threequarter-time student contained in 34
CFR 668.2 of the Student Assistance
General Provisions.
Finally, we are amending §§ 691.76
(Frequency of payment) and 691.80
(Redetermination of eligibility for a
grant award) to address how (a) an
institution determines a student’s
enrollment status for payment purposes
for prior payment periods, and (b)
changes in a student’s enrollment status,
which are now permitted under the
statute, are handled for purposes of
recalculation of award amounts.
Reason: We are making the changes to
§§ 691.2 and 691.15 to implement the
statutory change allowing students
attending at least half-time to be eligible
for an award under the ACG and
National SMART Grant programs.
We also believe that it is appropriate
to amend the student eligibility
provisions in 34 CFR part 668 (Student
Assistance General Provisions) to
include the ACG and National SMART
Grant programs among the other Title
IV, HEA programs that have the same
enrollment status requirement.
The amendments to §§ 691.76 and
691.80 enable institutions to adjust ACG
and National SMART Grant award
payments based on a change in a
student’s enrollment status. These
amendments are consistent with 34 CFR
690.76 and 690.80 in the Federal Pell
Grant Program regulations.
Prior Enrollment and Student Eligibility
(§ 691.15)
Statute: Section 10(a)(3)(C)(ii)(III) of
the ECASLA amends section
401A(c)(3)(A)(ii) of the HEA to clarify
that students who were enrolled in a
program of undergraduate education as
part of a secondary school program of

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study are not subject to the prior
enrollment restriction for first-year
students.
Current Regulations: Current
§ 691.15(b)(1)(ii)(C) provides that a
student is not eligible for a first-year
ACG if the student was enrolled as a
regular student in an ACG-eligible
program while the student was at or
below the age of compulsory attendance
while he or she was in high school.
Regulations: We are amending
§ 691.15(b)(1)(ii)(C) to provide that the
restriction on prior enrollment does not
apply to students who were enrolled as
regular students in an eligible program
of undergraduate education that was
also part of a secondary school program
of study. We are also clarifying in new
§ 691.15(b)(1)(ii)(C) that transfer
students who are first-year students are
not considered to have been previously
enrolled and, therefore, are not subject
to the prior enrollment restriction.
Reason: These interim final
regulations implement the statutory
clarification concerning prior
enrollment and clarify that we do not
consider transfer students to have been
previously enrolled.
Rigorous Secondary School Program of
Study (§ 691.16)
Statute: Section 401A(f) of the HEA,
as amended by section 10(a)(3) of the
ECASLA and section 401(c)(3) of the
HEOA, require the Secretary to
recognize not less than one rigorous
secondary school program of study in
each State for the purpose of
determining student eligibility for an
ACG.
Section 401A(c)(3)(A)(i)(I) of the HEA
provides that a rigorous secondary
school program of study established by
a State educational agency (SEA) or
local educational agency (LEA) after
January 1, 2006, but before July 1, 2009,
and recognized by the Secretary
continues to be an eligible rigorous
secondary school program of study for
a first-year ACG. Section
401A(c)(3)(B)(i)(I) of the HEA provides
that a rigorous secondary school
program of study established by an SEA
or LEA after January 1, 2005, but before
July 1, 2009, and recognized by the
Secretary continues to be an eligible
rigorous secondary school program of
study for a second-year ACG. Section
401A(c)(3)(A)(i)(II)(aa) and
401A(c)(3)(B)(i)(II)(aa) of the HEA
provides that a rigorous secondary
school program includes any secondary
school program of study that, on or after
July 1, 2009, a designated official
recognizes—in a report to the
Secretary—as a rigorous secondary
school program of study that prepares

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students for college. Section
401A(c)(3)(A)(i)(II)(bb) and
(c)(3)(B)(i)(II)(bb) of the HEA further
provides that a rigorous secondary
school program includes any secondary
school program of study recognized as
rigorous by the Secretary in regulations
that were in effect on May 6, 2008.
Current Regulations: Current
§ 691.16(a) provides that, for an award
year, the Secretary recognizes in each
State at least one rigorous secondary
school program of study established by
an SEA or, if authorized by the State to
establish a separate secondary school
program of study, an LEA. Current
§ 691.16(d) provides that, in addition to
those programs established by States
and LEAs and recognized by the
Secretary under § 691.16(b) and (c), the
Secretary recognizes certain other
secondary school programs of study as
rigorous, including continued
recognition of advanced or honors
secondary school programs of study by
the Secretary for school years
subsequent to the 2005–2006 school
year. Also under current § 691.16(d)(4)
and (d)(5), successful completion of a
secondary school program that includes
at least two AP or IB courses and
scoring a 3 or higher on the
corresponding AP exams or a 4 or
higher on the corresponding IB exams is
considered by the Secretary to
demonstrate that the student completed
a rigorous secondary school program of
study. Furthermore, under current
§ 691.16(d)(2), the Secretary recognizes
successful completion of the following
coursework to fulfill the requirement
that a student complete a rigorous
secondary school program of study: four
years of English; three years of
mathematics, including Algebra I and a
higher level class such as Geometry;
three years of science, including one
year each of at least two of the following
courses: Biology, Chemistry, and
Physics; three years of social studies;
and one year of a language other than
English.
Current § 691.16(b)(2) allows SEAs
and LEAs to request recognition of
rigorous secondary school programs of
study for school years beyond the
immediate next school year.
Pursuant to current § 691.16(e), the
Secretary publishes a list of rigorous
secondary school programs of study that
the Secretary recognizes.
Regulations: We are amending and
reorganizing current § 691.16 by
removing paragraphs (a) and (c) because
these provisions apply to the Secretary’s
recognition of rigorous secondary school
programs of study as established by an
SEA or LEA. Effective July 1, 2009, the
Secretary will no longer recognize new

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rigorous secondary school programs of
study submitted by an SEA or LEA; thus
paragraphs (a) and (c) are no longer
needed. As a result of removing
paragraphs (a) and (c) of this section, we
are redesignating paragraphs (b) and (d)
as paragraphs (a) and (b), respectively.
We are amending current § 691.16(b)
(new § 691.16(a)) to provide that,
starting with the 2009–2010 award year,
a designated official, consistent with
State law, may recognize and report to
the Secretary any secondary school
programs of study that prepare students
for college and that the designated
official deems rigorous. Programs
reported to the Secretary by designated
officials under new § 691.16(a)
supplement the secondary school
programs recognized by the Secretary as
rigorous under the current regulations.
We are amending current
§ 691.16(b)(1) and (2) (new
§ 691.16(a)(2)(i) and (ii)) such that a
designated official may report to the
Secretary rigorous programs for students
graduating during the current award
year and for students graduating during
award years subsequent to the current
award year.
We are amending current § 691.16(d)
(new § 691.16(b)) by adding paragraph
(b)(6) to include—in the list of
preapproved rigorous secondary school
programs of study—any rigorous
programs submitted by States and
recognized by the Secretary as rigorous
after January 1, 2005, but before July 1,
2009.
Reason: The amendments to § 691.16
implement the statutory change that,
instead of submitting secondary school
programs of study for the Secretary’s
recognition as rigorous, starting with the
2009–2010 award year, designated
officials report to the Secretary rigorous
secondary school programs of study,
including such programs of study in
home schools and private schools, that
prepare students for college. As
indicated in the Paperwork Reduction
Act of 1995 section of this notice, we are
specifically requesting comments on the
most effective methods by which
designated officials would report
information about rigorous secondary
school programs of study in private
schools and home schools to the
Secretary and how that information
would most effectively be transmitted to
institutions to allow them to determine
a student’s eligibility for an ACG.
These interim final regulations,
consistent with changes made to the
HEA by the HEOA, also retain as
rigorous those secondary school
programs of study submitted by States
after January 1, 2005 but before July 1,
2009 and recognized as rigorous by the

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Secretary. Finally, the interim final
regulations allow designated officials to
report their rigorous programs to the
Secretary for both the current and future
award years.
Eligible Majors (§§ 691.2(b), 691.15, and
691.17)
Declaring and Documenting a Major
(§ 691.15)
Statute: Section 401A(c)(3)(C) and
(c)(3)(D) of the HEA, as amended by
section 10(a)(3) of the ECASLA, identify
the majors that are eligible for a
National SMART Grant for a student in
his or her third or fourth year of
undergraduate education at an
institution of higher education. Section
401A(c)(3)(C)(i) of the HEA provides
that a student pursuing a major in the
physical, life, or computer sciences,
mathematics, technology, engineering,
or a critical foreign language (which is
defined in section 103(3) of the HEA)
may be eligible for a National SMART
Grant. Section 401A(c)(3)(D)(i)(I) of the
HEA provides that a student at an
institution of higher education that
offers a single liberal arts curriculum
that was offered prior to February 8,
2006, under which a student is not
permitted to declare a major in a
particular subject area, may receive a
National SMART Grant if the student
studies a subject that has requirements
that are at least equal to the
requirements for an academic major in
the physical, life, or computer sciences,
mathematics, technology, engineering,
or a critical foreign language at another
institution of higher education that
offers a baccalaureate degree in that
subject. Alternatively, under section
401A(c)(3)(D)(i)(II) of the HEA, a student
at such institution may undertake a
rigorous course of study in mathematics,
biology, chemistry, and physics that
consists of at least four years of study
in mathematics and three years of study
in the sciences, with a laboratory
component in each of those years.
Under section 401A(c)(3)(E) of the
HEA, as amended by the ECASLA, a
student may be eligible for a National
SMART Grant in his or her fifth year of
undergraduate education if the student
pursues a major in the physical, life, or
computer sciences, mathematics,
technology, engineering, or a critical
foreign language if an appropriate
institutional official certifies that the
program requires five full years of
coursework.
Current Regulations: Current
§ 691.15(c)(2) requires that, to be eligible
for a National SMART Grant, a student
must formally declare his or her eligible
major in accordance with the

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institution’s academic requirements.
However, if under an institution’s
procedures, a student would not be able
to formally declare a major in time to
qualify for a National SMART Grant, the
student must demonstrate his or her
intent to declare an eligible major as
documented by the institution. Under
current § 691.15(c)(2), as soon as the
student is able to formally declare a
major, the student must do so in order
to remain eligible for a National SMART
Grant. In the case of a student who has
declared or intends to declare an
eligible major, the student must enroll
in the courses necessary to complete the
degree program and to fulfill the eligible
major requirements.
Current §§ 691.15(d)(1) and 691.15(e)
specify how an institution must
document a student’s declaration of an
eligible major, and progress in the
eligible program and major, by requiring
the institution to maintain the following
documentation: (a) Documentation of
the declared major or, in the case of a
student’s intent to declare a major, a
written declaration of intent provided
by the student that has been received
recently enough for the institution to
determine that it still correctly reflects
the student’s stated intent; and (b)
written documentation showing that the
student is completing coursework at an
appropriate pace in the student’s
declared or intended eligible program
and eligible major.
Regulations: Section 691.15(d)(3)
exempts a student enrolled in a
qualifying liberal arts curriculum from
the requirement that the student must
declare an eligible major to receive a
National SMART Grant.
We also are amending
§ 691.15(c)(2)(ii) and § 691.15(e) to
provide that an institution need only
document a student’s progress in
completing the program in the intended
or declared National SMART Granteligible program.
Reason: Under the new statutory
provision reflected in section
401A(c)(3)(D) of the HEA, a student
enrolled in a qualifying liberal arts
curriculum as a major is necessarily
enrolled in a National SMART Granteligible major. Because students in a
qualifying liberal arts curriculum do not
declare majors, it is not possible for the
institution to document the student’s
declaration of a major as required under
the current regulations. We are,
therefore, removing the documentation
requirement for students in qualifying
liberal arts curricula.
In addition, a major change to the
National SMART Grant Program is the
extension of eligibility to otherwise
eligible students who are enrolled less

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than full-time but at least half-time. A
student who is enrolled on a less-thanfull-time basis would have difficulty
enrolling in a course in the eligible
major each payment period as currently
required because a part-time student
will typically only enroll in two or three
courses in a payment period. Thus, even
though the part-time student could be
progressing in a satisfactory manner in
his or her program, the student would
be ineligible for a National SMART
Grant under the current requirements.
Sections 691.15(c)(2) and (e), therefore,
amend the current regulations to require
an institution to document a student’s
progress in completing the program in
the intended or declared National
SMART Grant-eligible program rather
than coursework strictly specific to the
academic major’s requirements each
payment period.
Determination of Eligible Majors
(§§ 691.2(b) and 691.17)
Statute: Section 401A(c)(3)(C) and (D)
of the HEA, as amended by section
10(a)(3) of the ECASLA, identifies the
majors that a student must pursue to be
eligible for a National SMART Grant in
his or her third or fourth year of
undergraduate education at an
institution of higher education.
Specifically, section 401A(c)(3)(C)(i)
of the HEA provides that a student
pursuing a major in the physical, life, or
computer sciences, mathematics,
technology, engineering, or a critical
foreign language is eligible for a
National SMART Grant, provided the
student meets other eligibility criteria.
Section 401A(c)(3)(D) of the HEA
extends eligibility for a National
SMART Grant to a student enrolled in
a program at an institution of higher
education that offers a single liberal arts
curriculum leading to a baccalaureate
degree that was offered prior to
February 8, 2006, and under which the
student is not permitted to declare a
major in a particular subject area. A
student in this type of program may
receive a National SMART Grant if (a)
the student studies a subject that has
requirements that are at least equal to
the requirements for an academic major
in the physical, life, or computer
sciences, mathematics, technology,
engineering, or a critical foreign
language at another institution of higher
education that offers a baccalaureate
degree in that subject and the student
has obtained a cumulative grade point
average of at least 3.0 in the relevant
coursework (see section
401A(c)(3)(D)(i)(I) of the HEA); or (b) the
student undertakes a rigorous course of
study in mathematics, biology,
chemistry, and physics that consists of

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at least four years of study in
mathematics and three years of study in
the sciences, with a laboratory
component in each of those years (see
section 401A(c)(3)(D)(i)(II) of the HEA).
Section 401A(c)(3)(E) of the HEA, as
amended by the ECASLA, identifies the
majors a student must pursue to be
eligible for a National SMART Grant in
his or her fifth year of undergraduate
education. These majors are the same as
those identified for eligibility for thirdand fourth-year National SMART Grants
except that the major may not be a
liberal arts curriculum.
Current Regulations: Current
§ 691.17(a) provides that, for each award
year, the Secretary identifies eligible
majors in the physical, life, or computer
sciences, mathematics, technology,
engineering, and, after consulting with
the Director of National Intelligence,
critical foreign languages.
Regulations: Section 691.17(a)
amends the current regulations to
incorporate the new definition of a
‘‘critical foreign language’’ found in
section 103(3) of the HEA. Current
§ 691.17(b) is removed and replaced
with a new § 691.17(b) to include a
qualifying liberal arts curriculum as an
eligible major. Section 691.17(d)
amends the current regulations for
designating an additional eligible major
by adding a requirement that an
institution requesting designation of a
liberal arts curriculum as an eligible
major submit, in addition to the
information requested in § 691.17(d)(1),
information demonstrating that the
liberal arts curriculum complies with
the requirements in new § 691.17(b).
Reason: The interim final regulations
are necessary to implement the statutory
provisions that expand the list of majors
eligible for a National SMART Grant
and to provide a mechanism for an
institution to request designation of a
qualifying liberal arts curriculum as a
National SMART Grant-eligible major.
Calculation of a Grant (§ 691.62)
Statute: Section 10(a)(3) of the
ECASLA amends section 401A(c) of the
HEA to provide that a student enrolled
or accepted for enrollment in an
institution of higher education on not
less than a half-time basis may be an
eligible student. Section 10(a)(4) of the
ECASLA amends section 401A(d)(1)(B)
of the HEA to clarify that, in any case
in which a student attends on a less
than full-time basis, the student’s grant
amount shall be reduced in the same
manner as a Federal Pell Grant is
reduced under section 401(b)(2)(B) of
the HEA.
Current Regulations: Current
§ 691.62(b) describes the maximum ACG

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and National SMART Grant Scheduled
Award amounts for an eligible full-time
student, but does not provide annual
award amounts for three-quarter-time
and half-time students.
Regulations: We are amending
§ 691.62 by adding paragraphs (c) and
(d) to describe the ACG and National
SMART Grant annual award amounts
for full-time, three-quarter-time, and
half-time students.
Reason: We are adding § 691.62(c)
and (d) in conjunction with other
changes to Subpart F, to ensure
compliance with the statutory
requirement that a student’s payments
be adjusted based on the student’s
enrollment status during a payment
period consistent with the calculation of
a payment for a payment period under
the Federal Pell Grant Program.
Calculation of a Grant for a Payment
Period (§§ 691.63 and 691.66)
General
Statute: Section 10(a)(3) of the
ECASLA amends section 401A(c) of the
HEA to provide that a student enrolled
or accepted for enrollment in an
institution of higher education on not
less than a half-time basis may be an
eligible student. Section 10(a)(4) of the
ECASLA also amends section
401A(d)(1)(B)(i) of the HEA to provide
that, in any case in which a student
attends on a less than full-time basis,
the student’s grant amount shall be
reduced in the same manner as a
Federal Pell Grant is reduced under
section 401(b)(2)(B) of the HEA.
Current Regulations: Current § 691.63
provides that an ACG or a National
SMART Grant payment for a payment
period is calculated only on the basis of
the ACG or National SMART Grant
Scheduled Award. This section does not
address how an ACG Grant or a National
SMART Grant payment for a payment
period is calculated for less-than-fulltime students.
Regulations: We are amending
§ 691.63(h) to describe how ACG and
National SMART Grant payments for a
payment period are calculated for fulltime, three-quarter-time, and half-time
students. In addition, throughout
§ 691.63, except as provided in
§ 691.63(e), we change references from
‘‘Scheduled Award’’ to ‘‘annual award
under § 691.62’’ to account for a
student’s enrollment status as a fulltime, three-quarter-time, or half-time
student in calculating the student’s
payment for a payment period.
Finally, we are adding a new § 691.66
to address how institutions of higher
education calculate an ACG and a
National SMART Grant payment for a

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payment period in a program of study
offered by correspondence. Conforming
changes are also made to § 686.25 and
§ 690.66.
Reason: We are amending § 691.63
and adding § 691.66, in conjunction
with other changes to Subpart F, to
ensure compliance with the statutory
requirement that a student’s payments
be adjusted based on the student’s
enrollment status during a payment
period and that a student enrolled at
least half-time in a program of study
offered by correspondence would be
eligible for an ACG or a National
SMART Grant.
Payment Period and Grade Level
Progression
Statute: As discussed elsewhere in
this notice, section 10 of the ECASLA
amends the provisions of section 401A
of the HEA by replacing the term
‘‘academic year’’ with the term ‘‘year’’
in those instances related to
determining a student’s period of
eligibility for an ACG or a National
SMART Grant (e.g., section 401A(b),
(c)(3), (d)(1)(A)(iii) and (d)(2) of the
HEA).
Current Regulations: Current
§ 691.63(h) provides that a student may
not progress to the next academic year
during a payment period.
Regulations: We are amending
§ 691.63(h) to provide that a student
may not progress to the next year in a
grade level (rather than next academic
year) during a payment period.
Reason: We are making this change
because eligibility for the ACG and
National SMART Grant programs is no
longer based on the student’s academic
year standing. Eligibility is based on
‘‘year,’’ which refers to a student’s grade
level consistent with the FFEL and
Direct Loan programs.
Executive Order 12866
1. Regulatory Impact Analysis
Under Executive Order 12866, the
Secretary must determine whether the
regulatory action is ‘‘significant’’ and
therefore subject to the requirements of
the Executive order and subject to
review by the Office of Management and
Budget (OMB). Section 3(f) of Executive
Order 12866 defines a ‘‘significant
regulatory action’’ as an action likely to
result in a rule that may (1) have an
annual effect on the economy of $100
million or more, or adversely affect a
sector of the economy, productivity,
competition, jobs, the environment,
public health or safety, or State, local or
tribal governments or communities in a
material way (also referred to as an
‘‘economically significant’’ rule); (2)

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create serious inconsistency or
otherwise interfere with an action taken
or planned by another agency; (3)
materially alter the budgetary impacts of
entitlement grants, user fees, or loan
programs or the rights and obligations of
recipients thereof; or (4) raise novel
legal or policy issues arising out of legal
mandates, the President’s priorities, or
the principles set forth in the Executive
order.
Pursuant to the terms of the Executive
order, it has been determined that this
interim final regulatory action will have
an annual effect on the economy of
more than $100 million. Therefore, this
action is ‘‘economically significant’’ and
subject to OMB review under section
3(f)(1) of Executive Order 12866.
Need for Federal Regulatory Action
These interim final regulations
address a range of issues affecting
students and institutions of higher
education participating in the ACG and
National SMART Grant programs. They
are needed to implement statutory
changes enacted through the ECASLA
and the HEOA.
Regulatory Alternatives Considered
The Department cannot modify
statutory program requirements through
regulations. Because the interim final
regulations merely implement specific
statutory provisions, the Department
had extremely limited discretion to
consider alternative approaches. In
general, as discussed in detail under the
Reason sections that accompany the
discussion of each interim final
regulatory provision, the Department
used this limited discretion to minimize
burden and complexity and, to the
extent possible, mirror comparable
regulations for other student aid
programs. In assessing the budgetary
impact of these alternatives, the
Department considered the effect of
possible changes on student eligibility
for ACG and National SMART Grant
awards and on the size or timing of
student awards. In all cases, the
alternatives considered did not have a
measurable effect on Federal costs.
Transfers
These interim final regulations
broaden access to the ACG and National
SMART Grant programs by
implementing statutory changes that
extend eligibility to part-time students
who are enrolled at their institution on
at least a half-time basis, eligible noncitizens, and students enrolled in
certain certificate programs. The interim
final regulations also allow eligible
degree programs with at least five full
undergraduate years to award National

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SMART Grant awards in the third,
fourth, and fifth years of the program.
Mandatory funding for the ACG and
National SMART Grant programs is
provided through fiscal year 2010, after
which the program would sunset. Funds
for fiscal year 2010 would be used to
support the 2010–2011 award year. The
Department estimates that changes
implemented through these interim
final regulations, which become
effective July 1, 2009, will result in
538,000 additional awards totaling $448
million over award years 2009–2010
and 2010–2011. More specifically,
under current estimates, expanding
eligibility to less-than-full-time
students, eligible non-citizens, and
students at certificate programs will
increase ACG awards by 209,000 in
2009–2010 and 241,000 in 2010–2011
and increase National SMART Grant
awards by 43,000 in 2009–2010 and
45,000 in 2010–2011.
Other changes in these interim final
regulations implement statutory changes
replacing the term ‘‘academic year’’
with the term ‘‘year’’ for the purposes of
determining a student’s period of
eligibility for an ACG or a National
SMART Grant. These changes are
expected to significantly simplify the
process of determining eligibility for
participating institutions of higher
education and students.
As noted, statutory changes in
program eligibility criteria implemented
by these interim final regulations will
increase the dollar amount of grant
awards under the ACG and National
SMART Grant programs by $448 million
over award years 2009–2010 and 2010–
2011. This will increase Federal costs by
the same amount.
Because institutions of higher
education affected by these interim final
regulations already participate in the
ACG and National SMART Grant
programs, these schools must have
already established systems and
procedures to meet program eligibility
requirements. The interim final
regulations reflect discrete changes in
specific parameters associated with the
Department’s existing regulations for
these programs, rather than entirely new
requirements. Accordingly, entities
wishing to continue to participate in the
programs have already absorbed most of
the administrative costs related to
implementing these interim final
regulations. Marginal costs over this
baseline are primarily related to onetime changes that, while possibly
significant in some cases, are an
unavoidable cost of continued program
participation.
Elsewhere in this SUPPLEMENTARY
INFORMATION section, we identify and

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Federal Register / Vol. 74, No. 83 / Friday, May 1, 2009 / Rules and Regulations
explain burdens specifically associated
with information collection
requirements. See the heading
Paperwork Reduction Act of 1995.

interim final regulations easier to
understand, see the instructions in the
ADDRESSES section of this preamble.
Regulatory Flexibility Act Certification

Accounting Statement

The Secretary certifies that these
interim final regulations will not have a
significant economic impact on a
substantial number of small entities.
These interim final regulations affect
institutions of higher education, States,
State agencies, and individual students.
The U.S. Small Business Administration
(SBA) Size Standards define these
institutions as ‘‘small entities’’ if they
are for-profit or nonprofit institutions
with total annual revenue below
$5,000,000 or if they are institutions
controlled by governmental entities
with populations below 50,000.
TABLE 1—ACCOUNTING STATEMENT: Individuals are not defined as ‘‘small
CLASSIFICATION OF ESTIMATED SAV- entities’’ under the Regulatory
Flexibility Act.
INGS
A significant percentage of the
[In millions]
schools participating in the ACG and
National SMART Grant programs meet
Category
Transfer
the definition of ‘‘small entities.’’ While
Annualized monetized transfers
$448 these schools fall within the SBA size
guidelines, these interim final
2. Clarity of the Regulations
regulations do not impose significant
new costs on these entities.
Executive Order 12866 and the
Specific burden concerns are
Presidential memorandum on ‘‘Plain
discussed in more detail elsewhere in
Language in Government Writing’’
require each agency to write regulations this preamble, primarily in the
Paperwork Reduction Act of 1995
that are easy to understand.
section.
The Secretary invites comments on
how to make these interim final
Paperwork Reduction Act of 1995
regulations easier to understand,
Sections 691.15 and 691.16 contain
including answers to questions such as
information collection requirements.
the following:
• Are the requirements in the interim Under the Paperwork Reduction Act of
1995 (44 U.S.C. 3507(d)), the
final regulations clearly stated?
Department has submitted a copy of
• Do the interim final regulations
these sections to OMB for its review.
contain technical terms or other
wording that interferes with their
Section 691.15(a)—Eligibility To Receive
clarity?
a Grant
• Does the format of the interim final
The interim final regulations amend
regulations (grouping and order of
sections, use of headings, paragraphing, the eligibility requirements to receive an
ACG or a National SMART Grant by
etc.) aid or reduce their clarity?
• Would the interim final regulations removing several restrictive criteria.
Currently, only students who are U.S.
be easier to understand if we divided
citizens are eligible to receive an ACG
them into more (but shorter) sections?
or a National SMART Grant. Under
(A ‘‘section’’ is preceded by the symbol
these interim final regulations, and
‘‘§’’ and a numbered heading; for
consistent with other Title IV, HEA
example, § 691.16 Rigorous Secondary
programs, in addition to U.S. citizens,
School Program of Study.)
• Could the description of the interim students who can provide evidence
from the United States Citizenship and
final regulations in the SUPPLEMENTARY
Immigration Service, an office of the
INFORMATION section of this preamble be
more helpful in making the interim final United States Department of Homeland
Security, that they are in the United
regulations easier to understand? If so,
States for other than a temporary
how?
• What else could we do to make the
purpose with the intention of becoming
interim final regulations easier to
a citizen or permanent resident, may
understand?
qualify as eligible non-citizens for the
To send any comments that concern
ACG and National SMART Grant
how the Department could make these
programs.
As required by OMB Circular A–4
(available at http://
www.Whitehouse.gov/omb/Circulars/
a004/a-4.pdf), in Table 1, we have
prepared an accounting statement
showing the classification of the
expenditures associated with the
provisions of these interim final
regulations. As shown in the table, the
Department estimates that these interim
final regulations will increase Federal
grant payments to students by $448
million.

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20219

The requirement that a student be
enrolled on a full-time basis is also
removed. Under these interim final
regulations, students enrolled on at least
a half-time or greater basis may be
eligible to receive an ACG or a National
SMART Grant.
The interim final regulations provide
that the restriction on prior
postsecondary enrollment does not
apply to students who were enrolled as
regular students in an eligible program
of undergraduate education that was
also part of a secondary school program
of study. We also clarify that transfer
students who are first-year students are
not considered to have been previously
enrolled and, therefore, are not subject
to the prior enrollment restriction.
It is estimated that these changes
regarding student eligibility will result
in an increase in the burden hours
associated with the programs through
the Common Origination and
Disbursement (COD) System. We
estimate that the interim final
regulations will increase burden for
institutions of higher education by
12,412 hours, under OMB Control
Number 1845–0039.
Section 691.16—Rigorous Secondary
School Program of Study
The interim final regulations amend
the current regulations to provide that,
starting with the 2009–2010 award year,
a designated official, consistent with
State law, may recognize and report any
information to the Secretary about
rigorous secondary school programs of
study that prepare students for college.
These rigorous programs provide an
option by which a student could meet
the rigorous secondary school program
of study requirement for receipt of an
ACG.
Consistent with the amendments to
section 401A of the HEA, rigorous
programs submitted by States and
recognized by the Secretary as rigorous
after January 1, 2005, but before July 1,
2009, will continue to be listed in the
document published annually by the
Secretary listing rigorous secondary
school programs of study. This listing
also includes the new rigorous
secondary programs of study as reported
to the Department for students
graduating during the current award
year and for students graduating during
award years subsequent to the current
award year. In addition to any new
programs of study, the information that
designated officials report to the
Department about rigorous secondary
school programs of study also includes
changes to previously reported rigorous
programs of study or any deleted
rigorous programs of study. Consistent

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with the deadline set by the Secretary
for reporting rigorous high school
programs to the Department, we expect
that 56 SEAs reporting for the State
(and/or on behalf of the State’s LEAs)
will be reporting to the Department
annually. In addition, designated
officials will report information
regarding the rigorous programs offered
by private and home schools for an
estimated 36,000 high school students
who attend private high schools and

home schools for the year of the
students’ secondary school graduation
or completion. We specifically request
comments on the most effective
methods by which designated officials
would report information about rigorous
secondary school programs of study in
private schools and home schools to the
Secretary and how that information
would most effectively be transmitted to
institutions to allow them to determine
a student’s eligibility for an ACG.

It is estimated that these changes
regarding reporting of rigorous
secondary school programs of study will
result in an increase in burden hours.
We estimate that the interim final
regulations will increase burden for
States, private high schools, home
schools, and individuals by 18,280
hours, under new OMB Control Number
1845–XXXX.

COLLECTION OF INFORMATION
Regulatory section

Information collection

Collection

691.15 ..................................

This interim final regulation expands student eligibility
requirements for the ACG and National SMART
Grant programs.

691.16 ..................................

This interim final regulation provides for States to report
new, changed, or deleted rigorous secondary programs of study.

OMB 1845–0039.
This is a revision of an existing collection which is
being submitted to OMB with these interim final regulations.
OMB 1845–XXXX. This will be a new collection. A separate 60-day FEDERAL REGISTER notice will be published to solicit comment on this form once it is developed.

If you want to comment on the
information collection requirements,
please send your comments to the Office
of Information and Regulatory Affairs,
OMB, Attention: Desk Officer for U.S.
Department of Education. Send these
comments by e-mail to
[email protected] or by fax
to (202) 395–6974. Commenters need
only submit comments via one
submission method. You may also send
a copy of these comments to the
Department contact named in the
ADDRESSES section of this preamble.
We consider your comments on these
collections of information in—
• Deciding whether the collections
are necessary for the proper
performance of our functions, including
whether the information will have
practical use;
• Evaluating the accuracy of our
estimate of the burden of the
collections, including the validity of our
methodology and assumptions;
• Enhancing the quality, usefulness,
and clarity of the information we
collect; and
• Minimizing the burden on those
who must respond. This includes
exploring the use of appropriate
automated, electronic, mechanical, or
other technological collection
techniques or other forms of information
technology; e.g., permitting electronic
submission of responses.
OMB is required to make a decision
concerning the collections of
information contained in these interim
final regulations between 30 and 60
days after publication of this document
in the Federal Register. Therefore, to
ensure that OMB gives your comments

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full consideration, it is important that
OMB receives the comments within 30
days of publication. This does not affect
the deadline for your comments to us on
the interim final regulations.
Intergovernmental Review
These programs are 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.
Assessment of Educational Impact
We have determined that these
interim final regulations do not require
transmission of information that any
other agency or authority of the United
States gathers or makes available.
However, in accordance with section
411 of the General Education Provisions
Act, 20 U.S.C. 1221e–4, the Secretary
requests comments on whether these
interim final regulations would require
transmission of information that any
other agency or authority of the United
States gathers or makes available.
Electronic Access to This Document
You may view this document, as well
as all other Department of Education
documents published in the Federal
Register, in text or Adobe Portable
Document Format (PDF) on the Internet

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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.
You may also view this document in
PDF format at the following site:
http://www.ifap.ed.gov/ifap/index.jsp?
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
Numbers: 84.063 Federal Pell Grants; 84.375
Academic Competitiveness Grants; 84.376
National SMART Grants; 84.379 TEACH
Grants)

List of Subjects in 34 CFR Parts 668,
686, 690, and 691
Colleges and universities, Elementary
and secondary education, Grant
programs education, Student aid.
Dated: April 28, 2009.
Arne Duncan,
Secretary of Education.

For the reasons discussed in the
preamble, the Secretary amends parts
668, 686, 690, and 691 of title 34 of the
Code of Federal Regulations as follows:

■

PART 668—STUDENT ASSISTANCE
GENERAL PROVISIONS
1. The authority citation for part 668
continues to read as follows:

■

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Federal Register / Vol. 74, No. 83 / Friday, May 1, 2009 / Rules and Regulations
Authority: 20 U.S.C. 1001, 1002, 1003,
1070g, 1085, 1088, 1091, 1092, 1094, 1099c,
and 1099c–1, unless otherwise noted.

(d) * * *
(1)(i) Determining his or her
enrollment status for the term;

§ 668.32

§ 690.66

[Amended]

2. Section 668.32(a)(2) is amended by:
A. Adding the words ‘‘ACG, National
SMART Grant,’’ after the words ‘‘For
purposes of the’’.
■ B. Adding the punctuation ‘‘,’’ after
the word ‘‘FFEL’’.
■
■

§ 668.33

[Amended]

3. Section 668.33 is amended by:
A. In paragraph (a), introductory text,
removing the words ‘‘paragraphs (b) and
(c)’’ and adding, in their place, the
words ‘‘paragraph (b)’’.
■ B. Removing paragraph (c).
■ C. Redesignating paragraph (d) as
paragraph (c).
■
■

PART 686—TEACHER EDUCATION
ASSISTANCE FOR COLLEGE AND
HIGHER EDUCATION (TEACH) GRANT
PROGRAM
4. The authority citation for part 686
continues to read as follows:

■

Authority: 20 U.S.C. 1070g, et seq., unless
otherwise noted.
§ 686.22

[Amended]

5. Section 686.22 is amended in
paragraph (f), by removing the words
‘‘or (e)’’ both times they appear.

■

§ 686.25

[Amended]

PART 690—FEDERAL PELL GRANT
PROGRAM
7. The authority citation for part 690
continues to read as follows:

■

Authority: 20 U.S.C. 1070a, 1070g, unless
otherwise noted.

§ 690.63 Calculation of a Federal Pell
Grant for a payment period.

*

*

*

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*

*

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PART 691—ACADEMIC
COMPETITIVENESS GRANT (ACG)
AND NATIONAL SCIENCE AND
MATHEMATICS ACCESS TO RETAIN
TALENT GRANT (NATIONAL SMART
GRANT) PROGRAMS
10. The authority citation for part 691
continues to read as follows:

■

Authority: 20 U.S.C. 1070a–1, unless
otherwise noted.
[Amended]

11. Section 691.1(b) is amended by
removing the words ‘‘and fourth-year’’
and adding, in their place, the words ‘‘,
fourth-, and, in the case of a program
with at least five full years, fifth-year’’.
■ 12. Section 691.2 is amended by:
■ A. In paragraph (a), adding, in
alphabetical order, the term ‘‘Federal
Family Education Loan (FFEL)
Programs’’.
■ B. In paragraph (b), adding, in
alphabetical order, the terms ‘‘Half-time
student’’, ‘‘Three-quarter time student’’,
and ‘‘William D. Ford Federal Direct
Loan (Direct Loan) Program’’.
■ C. In paragraph (d), revising the
definitions of ‘‘ACG Scheduled Award’’,
‘‘Eligible major’’, ‘‘Eligible program’’,
and ‘‘National SMART Grant Scheduled
Award’’; and adding, in alphabetical
order, the definition for ‘‘Annual
award’’.
■ D. Adding a new paragraph (e).
The additions and revisions read as
follows:
■

6. Section 686.25 is amended by:
A. Removing paragraph (b)(1).
B. Redesignating paragraphs (b)(2)(i)
and (b)(2)(ii) as paragraphs (b)(1) and
(b)(2), respectively.
■ C. In paragraph (c)(2)(i), adding the
words ‘‘to calculate the payment for the
payment period’’ after the word ‘‘used’’.
■ D. In paragraph (c)(2)(ii), adding the
words ‘‘to calculate the payment for the
payment period’’ after the word ‘‘used’’.

8. Section 690.63 is amended by:
A. Revising paragraph (d)(1)(i).
B. In paragraph (f), removing the
words ‘‘or (e)’’ both times they appear
and removing the word ‘‘paragraphs’’
and adding, in its place, the word
‘‘paragraph’’.
The revision reads as follows:

9. Section 690.66 is amended by:
A. Removing paragraph (b)(1).
B. Redesignating paragraphs (b)(2)(i)
and (b)(2)(ii) as paragraphs (b)(1) and
(b)(2), respectively.
■ C. In newly redesignated paragraph
(b)(1), removing the parenthetical ‘‘(4)’’.
■ D. In newly redesignated paragraph
(b)(2), removing the parentheticals
‘‘(a)(4)’’ and adding, in their place, the
words ‘‘paragraph (a)’’.
■ E. In paragraphs (c)(2)(i) and (c)(2)(ii),
adding the words ‘‘to calculate the
payment for the payment period’’ after
the word ‘‘used’’ both times it is used.
■
■
■

§ 691.1

■
■
■

■
■
■

[Amended]

§ 691.2

Definitions.

*

*
*
*
*
(d) * * *
ACG Scheduled Award: The
maximum amount of an ACG that
would be paid to a full-time first-year
student or a full-time second-year
student for the applicable year.

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20221

Annual award: The maximum ACG or
National SMART Grant amount a
student would receive for enrolling as a
full-time, three-quarter-time, or halftime student and remaining in that
enrollment status for one year.
*
*
*
*
*
Eligible major: A major, as identified
by the Secretary under § 691.17(a), in
one of the physical, life, or computer
sciences, mathematics, technology,
engineering, or a critical foreign
language as defined in section 103(3) of
the HEA; or a qualifying liberal arts
curriculum as identified by the
Secretary under § 691.17(b).
Eligible program: An eligible program
as defined in 34 CFR 668.8 that—
(1) For purposes of the ACG Program,
leads to an associate’s degree or a
bachelor’s degree, is an undergraduate
program at least one academic year in
length leading to a certificate, is at least
a two-academic-year program acceptable
for full credit toward a bachelor’s
degree, or is a graduate degree program
that includes at least three years of
undergraduate education; or
(2) For purposes of the National
SMART Grant Program—
(i) Leads to a bachelor’s degree in an
eligible major or is a graduate degree
program in an eligible major that
includes at least three years of
undergraduate education; and
(ii) In the case of a five-year program,
is a program that—
(A) Requires at least five full
undergraduate years to complete, as
certified by an appropriate institutional
official in accordance with the
institution’s policies and procedures
and documented in the institution’s
records;
(B) Contains not less than 24 semester
hours, 36 quarter credits, or 900 clock
hours in each year of the program,
including the fifth year; and
(C) Is not a program that is a
qualifying liberal arts curriculum
identified as an eligible major under
§ 691.17(b).
(3) For purposes of paragraph
(2)(ii)(A) of this definition, the
appropriate official of an institution is
the chief executive officer, provost,
dean, academic department chairman,
or other official with responsibility for
setting a degree program’s coursework.
*
*
*
*
*
National SMART Grant Scheduled
Award: The maximum amount of a
National SMART Grant that would be
paid to a full-time third-year, fourthyear, or fifth-year student for the
applicable year.
*
*
*
*
*
(e)(1) As used in this part, the terms
‘‘first-year,’’ ‘‘second-year,’’ ‘‘third-

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year,’’ ‘‘fourth-year,’’ and ‘‘fifth-year’’
refer to a student’s grade level in the
student’s eligible program as
determined by the institution for all
students in the eligible program.
(2) A student’s grade level for
purposes of the ACG and National
SMART Grant programs must be the
same grade level as used for
determining annual loan limits under
the FFEL and Direct Loan programs (34
CFR parts 682 and 685).
*
*
*
*
*
■ 13. Section 691.6 is revised to read as
follows:
§ 691.6 Duration of student eligibility—
undergraduate course of study.

(a) While enrolled in an ACG-eligible
program, a student is eligible to receive
up to one ACG Scheduled Award while
enrolled as a first-year student and one
ACG Scheduled Award while enrolled
as a second-year student.
(b)(1) While enrolled in a National
SMART Grant-eligible program, a
student is eligible to receive up to one
National SMART Grant Scheduled
Award while enrolled as a third-year
student, one National SMART Grant
Scheduled Award while enrolled as a
fourth-year student, and, in the case of
a National SMART Grant-eligible
program with five full years of

coursework, one National SMART Grant
Scheduled Award while enrolled as a
fifth-year student.
(2)(i) A student’s eligibility to receive
up to one National SMART Grant
Scheduled Award as a fourth-year
student, in the case of a National
SMART Grant-eligible program with
less than five full years of coursework,
extends from the beginning of the
student’s fourth year until he or she
completes his or her first undergraduate
baccalaureate course of study.
(ii) A student’s eligibility to receive
up to one National SMART Grant
Scheduled Award as a fifth-year
student, in the case of a National
SMART Grant-eligible program with at
least five full years of coursework,
extends from the beginning of the
student’s fifth year until he or she
completes his or her first undergraduate
baccalaureate course of study.
(c) A student may not receive more
than two ACG Scheduled Awards and
three National SMART Grant Scheduled
Awards during the student’s
undergraduate education in all eligible
programs.
(Authority: 20 U.S.C. 1070a–1)
■

14. Section 691.8 is amended by:

A. In paragraph (b)(1), adding the
words ‘‘certificate or’’ after the word
‘‘or’’ the first time it appears.
■ B. Adding new paragraphs (c) and (d)
to read as follows:
■

§ 691.8 Enrollment status for students
taking regular and correspondence
courses.

*

*
*
*
*
(c)(1) Notwithstanding the limitation
in paragraph (b)(3) of this section, a
student who would be a half-time
student based solely on his or her
correspondence work is considered a
half-time student unless the calculation
in paragraph (b) of this section produces
an enrollment status greater than halftime.
(2) A student who would be a lessthan-half-time student based solely on
his or her correspondence work or based
on a combination of his or her
correspondence work and regular
coursework is considered a less-thanhalf-time student and is ineligible for an
ACG or a National SMART Grant.
(d) The following chart provides
examples of the application of the
regulations set forth in this section. It
assumes that the institution of higher
education defines full-time enrollment
as 12 credits per term, making half-time
enrollment equal to six credits per term.

Under § 691.8

Number of credit
hours regular work

Number of credit
hours
correspondence

Total course load
in credit hours to
determine enrollment status

(b)(3) .........................................................................
(b)(3) .........................................................................
(b)(3) .........................................................................
(b)(3) .........................................................................
(b)(3) .........................................................................
(b)(3) and (c) .............................................................
(c) * ............................................................................

3
3
3
6
6
2
..............................

3
6
9
3
6
6
..............................

6
6
6
9
12
6
..............................

Enrollment status

Half-time.
Half-time.
Half-time.
Three-quarter-time.
Full-time.
Half-time.
Less-than-half-time.

* Any combination of regular and correspondence work that is greater than zero, but less than six hours. A less-than-half-time student would
be ineligible for an ACG or a National SMART Grant.

*

*
*
*
*
15. Section 691.15 is amended by:
■ A. Revising paragraph (a).
■ B. In paragraph (b)(1)(ii), removing the
word ‘‘academic’’.
■ C. Revising paragraphs (b)(1)(ii)(B)
and (b)(1)(ii)(C).
■ D. In paragraph (b)(1)(iii), removing
the word ‘‘academic’’.
■ E. In paragraph (b)(1)(iii)(B), removing
the words ‘‘as determined by the
institution,’’, and removing the words
‘‘recognized by the Secretary’’.
■ F. Removing paragraph (b)(1)(iii)(C)
and redesignating paragraph
(b)(1)(iii)(D) as paragraph (b)(1)(iii)(C).
In newly redesignated paragraph
(b)(1)(iii)(C), removing the word
‘‘academic’’ the first time it appears.
■

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G. In paragraph (b)(3)(ii), removing
the citation ‘‘691.16(d)(2)’’, and adding,
in its place, the citation ‘‘691.16’’.
■ H. In paragraph (b)(5)(i), removing the
words ‘‘recognized by the Secretary’’.
■ I. In paragraph (c), introductory text,
removing the words ‘‘third or fourth
academic’’ and adding, in their place,
the words ‘‘third, fourth, or fifth’’.
■ J. Removing paragraph (c)(2)(ii).
■ K. Redesignating paragraphs
(c)(2)(i)(A) and (c)(2)(i)(B) as paragraphs
(c)(2)(i) and (c)(2)(ii), respectively.
■ L. In newly redesignated paragraph
(c)(2)(i), removing the word ‘‘or’’.
■ M. In newly redesignated paragraph
(c)(2)(ii), removing the word ‘‘and’’ the
second time it appears and adding, in its
place, the word ‘‘or’’.
■

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N. Adding a new paragraph (c)(2)(iii).
O. In paragraph (c)(3), removing the
punctuation ‘‘;’’ and adding, in its place,
the punctuation ‘‘.’’.
■ P. Removing paragraphs (c)(4) and
(c)(5).
■ Q. Adding a new paragraph (d)(3).
■ R. In paragraph (e), introductory text,
adding the words ‘‘program in the’’
before the word ‘‘intended’’, and
removing the words ‘‘and major under
paragraph (c)(2)(ii) of this section’’.
■ S. In paragraph (f)(1)(i), removing the
words ‘‘for one academic year but less
than the credit or clock hours for two
academic years’’ and adding, in their
place, the words ‘‘to be considered a
second-year student’’.
■
■

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Federal Register / Vol. 74, No. 83 / Friday, May 1, 2009 / Rules and Regulations
T. In paragraph (f)(1)(ii), removing the
words ‘‘for one academic year’’ and
adding, in their place, the words ‘‘to be
considered a second-year student’’.
■ U. In paragraph (f)(1)(ii)(B), removing
the word ‘‘academic’’.
The revisions and additions read as
follows:
■

§ 691.15

Eligibility to receive a grant.

(a) General. A student who meets the
requirements of 34 CFR part 668,
Subpart C, is eligible to receive an ACG
or a National SMART Grant if the
student is receiving a Federal Pell Grant
disbursement in the same award year.
(b) * * *
(1) * * *
(ii) * * *
(B) Has successfully completed, after
January 1, 2006, a rigorous secondary
school program of study under § 691.16;
(C) Has not been previously enrolled
as a regular student in an eligible
program of undergraduate education
except as part of a secondary school
program of study. A transfer student
who is a first-year student is not
considered to have been previously
enrolled; and
*
*
*
*
*
(c) * * *
(2) * * *
(iii) Is at an institution that offers as
an eligible major a qualifying liberal arts
curriculum identified under § 691.17(b);
and
*
*
*
*
*
(d) * * *
(3) If the student is enrolled in a
qualifying liberal arts curriculum as a
major, there is no requirement to declare
a major.
*
*
*
*
*
■ 16. Section 691.16 is revised to read
as follows:
§ 691.16 Rigorous secondary school
program of study.

(a)(1) For each award year
commencing with the 2009–2010 award
year, the Secretary establishes a
deadline for submission of information
about secondary school programs of
study that are recognized by a
designated official, consistent with State
law, to prepare students for college and
that the designated official deems
rigorous.
(2) The designated official may submit
information pursuant to paragraph (a)(1)
of this section—
(i) For students graduating during the
current award year; and
(ii) For students graduating during
one or more specified upcoming award
years.
(b) In addition to those programs
reported to the Secretary as rigorous by

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the designated official under paragraph
(a) of this section, the following
secondary school programs of study are
rigorous:
(1) Advanced or honors secondary
school programs established by States
and in existence for the 2004–2005
school year or later school years.
(2) Any secondary school program in
which a student successfully completes
at a minimum the following courses:
(i) Four years of English.
(ii) Three years of mathematics,
including algebra I and a higher-level
class such as algebra II, geometry, or
data analysis and statistics.
(iii) Three years of science, including
one year each of at least two of the
following courses: biology, chemistry,
and physics.
(iv) Three years of social studies.
(v) One year of a language other than
English.
(3) A secondary school program
identified by a State—level partnership
that is recognized by the State Scholars
Initiative of the Western Interstate
Commission for Higher Education
(WICHE), Boulder, Colorado.
(4) Any secondary school program for
a student who completes at least two
courses from an International
Baccalaureate Diploma Program
sponsored by the International
Baccalaureate Organization, Geneva,
Switzerland, and receives a score of ‘‘4’’
or higher on the examinations for at
least two of those courses.
(5) Any secondary school program for
a student who completes at least two
Advanced Placement courses and
receives a score of ‘‘3’’ or higher on the
College Board’s Advanced Placement
Program Exams for at least two of those
courses.
(6) Rigorous secondary school
programs of study established by an
SEA or, if legally authorized by the State
to establish a separate secondary school
program of study, an LEA, where such
programs were recognized by the
Secretary as rigorous after January 1,
2005, but before July 1, 2009.
(Approved by the Office of
Management and Budget under control
number 1845–0078]
(Authority: 20 U.S.C. 1070a–1)

17. Section 691.17 is amended by:
A. In paragraph (a), removing the
words ‘‘or, as determined under
paragraph (b) of this section, critical
foreign languages.’’ and adding, in their
place, the words ‘‘critical foreign
languages as defined in section 103(3) of
the HEA, or a qualifying liberal arts
curriculum as an eligible major as
determined under paragraph (b) of this
section.’’

■
■

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20223

B. Revising paragraph (b).
C. Redesignating paragraphs (d)(1)
and (d)(2) as paragraphs (d)(2) and
(d)(4), redesignating the introductory
text after the heading of paragraph (d) as
paragraph (d)(1), and adding a new
paragraph (d)(3).
■ D. In paragraph (e), removing the
words ‘‘under paragraph (a) of this
section’’.
The revisions and additions read as
follows:
■
■

§ 691.17

Determination of eligible majors.

*

*
*
*
*
(b) Qualifying liberal arts curriculum
as an eligible major. The Secretary may
designate a baccalaureate-degree liberal
arts curriculum as an eligible major if—
(1) The curriculum is the only
curriculum at the institution of higher
education and was offered prior to
February 8, 2006;
(2) A student is not allowed to declare
a major in a particular subject area; and
(3) The Secretary determines that the
curriculum—
(i) Is at least equal to the requirements
for an identified National SMART
Grant-eligible major at an institution of
higher education that offers a
baccalaureate degree in that eligible
major; or
(ii) Requires the student to undertake
a rigorous course of study in
mathematics, biology, chemistry, and
physics that consists of at least four
years of study in mathematics and three
years of study in the sciences, with a
laboratory component in each of those
years.
*
*
*
*
*
(d) * * *
(3) In addition to the information in
paragraph (d)(2) of this section, requests
for designation of a liberal arts
curriculum as an eligible major must
include the information demonstrating
that the liberal arts curriculum complies
with the requirements described in
paragraph (b) of this section.
*
*
*
*
*
■ 18. Section 691.62 is amended by:
■ A. In paragraph (b), removing the
word ‘‘academic’’ each time it appears.
■ B. In paragraph (b)(2), removing the
words ‘‘third and fourth academic’’ and
adding, in their place, the words ‘‘third,
fourth, and fifth’’.
■ C. Redesignating paragraph (c) as
paragraph (f).
■ D. Adding new paragraphs (c), (d),
and (e).
■ E. In newly redesignated paragraph
(f), removing the words ‘‘for an
academic year’’.
The additions read as follows:

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§ 691.62

Federal Register / Vol. 74, No. 83 / Friday, May 1, 2009 / Rules and Regulations
Calculation of a grant.

*

*
*
*
*
(c) The ACG first-year annual award
for—
(1) A full-time student is the lesser of
$750 or a reduced ACG Scheduled
Award as determined under paragraph
(a)(2) of this section;
(2) A three-quarter-time student is the
lesser of $562.50 or 75 percent of a
reduced ACG Scheduled Award; and
(3) A half-time student is the lesser of
$375 or 50 percent of a reduced ACG
Scheduled Award.
(d) The ACG second-year annual
award for—
(1) A full-time student is the lesser of
$1,300 or a reduced ACG Scheduled
Award as determined under paragraph
(a)(2) of this section;
(2) A three-quarter-time student is the
lesser of $975 or 75 percent of a reduced
ACG Scheduled Award; and
(3) A half-time student is the lesser of
$650 or 50 percent of a reduced ACG
Scheduled Award.
(e) The National SMART Grant annual
award for—
(1) A full-time student is the lesser of
$4,000 or a reduced National SMART
Grant Scheduled Award as determined
under paragraph (a)(2) of this section;
(2) A three-quarter-time student is the
lesser of $3,000 or 75 percent of a
reduced National SMART Grant
Scheduled Award; and
(3) A half-time student is the lesser of
$2,000 or 50 percent of a reduced
National SMART Grant Scheduled
Award.
*
*
*
*
*
■ 19. Section 691.63 is amended by:
■ A. In paragraph (b)(1), removing the
word ‘‘Confirming’’ and adding, in its
place, the word ‘‘Determining’’, and
removing the word ‘‘full-time’’.
■ B. In paragraph (b)(2), removing the
word ‘‘Determining’’ and adding, in its
place, the words ‘‘Based upon that
enrollment status, determining’’, and
removing the words ‘‘Scheduled Award;
and’’ and adding, in their place, the
words ‘‘annual award under § 691.62;
and’’.
■ C. In paragraph (b)(3)(ii), removing the
words ‘‘Scheduled Award’’ and adding,
in their place, the words ‘‘annual
award’’.
■ D. In paragraph (b)(3)(ii)(A), removing
the words ‘‘Scheduled Award’’ and

adding, in their place, the words
‘‘annual award’’.
■ E. In paragraph (c)(1), removing the
word ‘‘Confirming’’ and adding, in its
place, the word ‘‘Determining’’; and
removing the word ‘‘full-time’’.
■ F. In paragraph (c)(2), removing the
word ‘‘Determining’’ and adding, in its
place, the words ‘‘Based upon that
enrollment status, determining’’, and
removing the words ‘‘Scheduled
Award;’’ and adding, in their place, the
words ‘‘annual award under § 691.62;’’.
■ G. In paragraph (c)(3), removing the
words ‘‘Scheduled Award’’ and adding,
in their place, the words ‘‘annual
award’’, and adding in the denominator
of each equation the words ‘‘of
instructional time’’ immediately after
the word ‘‘weeks’’.
■ H. In paragraph (c)(4)(ii), removing
the words ‘‘Scheduled Award’’ and
adding, in their place, the words
‘‘annual award’’ each time they appear.
■ I. Removing paragraph (d)(2).
■ J. Redesignating paragraphs (d)(1)(i)
and (d)(1)(ii) as paragraphs (d)(1) and
(d)(2), respectively.
■ K. Revising newly redesignated
paragraphs (d)(1) and (d)(2).
■ L. In paragraph (d)(3), removing the
words ‘‘Scheduled Award’’ and adding,
in their place, the words ‘‘annual
award’’.
■ M. In paragraph (e)(1), removing the
word ‘‘full-time’’ and adding, in its
place, the word ‘‘half-time’’.
■ N. In paragraph (f), removing the
words ‘‘Scheduled Award’’ and adding,
in their place, the words ‘‘annual
award’’ both times they appear,
removing the word ‘‘paragraphs’’ the
first time it appears and adding, in its
place, the word ‘‘paragraph’’, and
removing the words ‘‘or (e)’’ both times
they appear.
■ O. Revising paragraph (h).
The revisions read as follows:
§ 691.63 Calculation of a grant for a
payment period.

*

*
*
*
*
(d) * * *
(1) Determining his or her enrollment
status for the term;
(2) Based upon that enrollment status,
determining his or her ACG or National
SMART Grant annual award under
§ 691.62; and
*
*
*
*
*

(h) Payment period and grade level
progression. A student may not progress
to the next year during a payment
period. The student’s payment for the
payment period—
(1) Is from the ACG or National
SMART Grant Scheduled Award of the
year being completed; and
(2) Is calculated based on the
student’s credit or clock hours for the
payment period, and weeks of
instructional time in the payment
period.
*
*
*
*
*
§ 691.64

[Amended]

20. Section 691.64(b) is amended by
removing the words ‘‘an academic’’ and
adding, in their place, the word ‘‘a’’.

■

§ 691.65

[Amended]

21. Section 691.65 is amended by:
■ A. In the section heading, removing
the words ‘‘: Attendance at more than
one institution during an academic
year’’.
■ B. In paragraph (c), removing the word
‘‘academic’’ the first time it appears; and
removing the words ‘‘that academic
year’’ and adding, in their place, the
words ‘‘the student’s year at the second
institution’’.
■ C. In paragraph (d), removing the
word ‘‘academic’’.
■ D. In paragraph (f), removing the
words ‘‘an academic’’ and adding, in
their place, the word ‘‘a’’.
*
*
*
*
*
■ 22. Section 691.66 is added to read as
follows:
■

§ 691.66

Correspondence study.

(a) An institution calculates the ACG
or National SMART Grant for a payment
period for a student in a program of
study offered by correspondence
courses without terms, but not
including any residential component,
by—
(1) Determining that the student is
attending at least half-time;
(2) Determining the student’s halftime annual award determined under
§ 691.62; and
(3) Multiplying the student’s half-time
annual award by the lesser of—
(i)

The number of credit hours in the payment period
The number of credit hours in the program’s academic year

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or

Federal Register / Vol. 74, No. 83 / Friday, May 1, 2009 / Rules and Regulations

20225

The number of weeks of instructional time in the payment peeriod
The number of weeks of instructional time in the proggram’s academic year

(Authority: 20 U.S.C. 1070a–1)

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§ 691.75

[Amended]

23. Section 691.75 is amended by:
A. In paragraph (a)(3), removing the
words ‘‘a full-time’’ and adding, in their
place, the words ‘‘at least a half-time’’.
■ B. In paragraph (b)(2), removing the
word ‘‘academic’’, and removing the
citation ‘‘691.15(b)(1)(iii)(D)’’, and
adding, in its place, the citation
‘‘691.15(b)(1)(iii)(C)’’.
■ C. In paragraph (c), removing the
citation ‘‘691.15(b)(1)(iii)(D)’’, and
adding, in its place, the citation
‘‘691.15(b)(1)(iii)(C)’’.
■ D. In paragraph (d)(1)(i), removing the
word ‘‘academic’’, and removing the
citation ‘‘691.15(b)(1)(iii)(D)’’, and
adding, in its place, the citation
‘‘691.15(b)(1)(iii)(C)’’.
■ 24. Section 691.76 is amended by
revising paragraph (b) to read as follows:
■
■

§ 691.76

Frequency of payment.

*

*
*
*
*
(b) The institution may pay funds in
one lump sum for all the prior payment
periods for which the student was
eligible under § 691.15 within the award
year. The student’s enrollment status
must be determined according to work
already completed.
*
*
*
*
*
■ 25. Section 691.80 is amended by
revising paragraph (b) to read as follows:
§ 691.80 Redetermination of eligibility for a
grant award.

*

*
*
*
*
(b) Change in enrollment status. (1) If
the student’s enrollment status changes
from one payment period to another
within the same award year, the
institution must recalculate the
student’s award for the new payment
period taking into account any changes
in the cost of attendance.
(2)(i) If the student’s projected
enrollment status changes during a
payment period after the student has
begun attendance in all of his or her
classes for that payment period, the
institution may (but is not required to)
establish a policy under which the
student’s award for the payment period
is recalculated. If such a policy is
established, it must apply to all students
and be the same as the policy
established for the Federal Pell Grant
Program.
(ii)(A) If a student’s projected
enrollment status changes during a
payment period before the student
begins attendance in all of his or her
classes for that payment period, the

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institution must recalculate the
student’s enrollment status to reflect
only those classes for which the student
actually began attendance.
(B) If a student’s projected enrollment
status changes to less-than-half-time
during a payment period before the
student begins attendance in all of his
or her classes for that payment period,
the institution must determine that the
student is ineligible for a grant for that
payment period.
*
*
*
*
*
[FR Doc. E9–10094 Filed 4–30–09; 8:45 am]
BILLING CODE 4000–01–P

DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 38
RIN 2900–AN29

Headstones and Markers
Department of Veterans Affairs.
Final rule.

AGENCY:
ACTION:

SUMMARY: The Department of Veterans
Affairs (VA) is amending existing
regulations regarding the authority to
provide Government-furnished
memorial headstones and markers.
Memorial headstones or markers are
provided in certain circumstances to
memorialize eligible veterans and
certain family members whose remains
are not available for interment. Pursuant
to Sec. 810 of Public Law 110–389, the
Veterans’ Benefits Improvement Act of
2008, eligibility for a memorial
headstone or marker for placement in a
national or State veterans cemetery has
been extended to a veteran’s surviving
spouse who had a subsequent
remarriage and whose remains are
unavailable for interment. Previously, a
memorial headstone or marker could be
provided for a veteran’s surviving
spouse who had a subsequent
remarriage only if that remarriage was
terminated by death or divorce. This
final rule is necessary to incorporate a
statutory amendment into VA
regulations.

Effective Date: May 1, 2009.
Applicability Date: The amendment to
38 CFR 38.630 applies to eligible
surviving spouse deaths occurring on or
after October 10, 2008.
FOR FURTHER INFORMATION CONTACT: Joe
Sturm, Legislative and Regulatory
Division, National Cemetery
DATES:

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ER01MY09.025

(b) For purposes of paragraph (a) of
this section—
(1) The institution must make the first
payment to a student for an academic
year, as calculated under paragraph (a)
of this section, after the student submits
25 percent of the lessons or otherwise
completes 25 percent of the work
scheduled for the program or the
academic year, whichever occurs last;
and
(2) The institution must make the
second payment to a student for an
academic year, as calculated under
paragraph (a) of this section, after the
student submits 75 percent of the
lessons or otherwise completes 75
percent of the work scheduled for the
program or the academic year,
whichever occurs last.
(c) In a program of correspondence
study offered by correspondence
courses using terms but not including
any residential component—
(1) The institution must prepare a
written schedule for submission of
lessons that reflects a workload of at
least 30 hours of preparation per
semester hour or 20 hours of
preparation per quarter hour during the
term;
(2)(i) If the student is enrolled in at
least 6 credit hours that commence and
are completed in that term, the student’s
half-time annual award determined
under § 691.62 is used to calculate the
payment for the payment period; or
(ii) If the student is enrolled in less
than 6 credit hours that commence and
are completed in that term, the student
is not eligible for an ACG and National
SMART Grant;
(3) A payment for a payment period
is calculated using the formula in
§ 691.63(d) except that paragraphs (c)(1)
and (c)(2) of this section are used in lieu
of § 691.63(d)(1) and (2), respectively;
and
(4) The institution must make the
payment to a student for a payment
period after that student completes 50
percent of the lessons or otherwise
completes 50 percent of the work
scheduled for the term, whichever
occurs last.
(d) Payments for periods of residential
training must be calculated under
§ 691.63(d) if the residential training is
offered using terms and credit hours or
§ 691.63(e) if the residential training is
offered using credit hours without
terms.