Institutional Eligibility Under the Higher Education Act of 1965, as Amended, and the Secretary's Recognition of Accrediting Agencies, 55414-55435 [E9-25186]

Agencies

• DEPARTMENT OF EDUCATION

[Federal Register Volume 74, Number 206 (Tuesday, October 27, 2009)]
[Rules and Regulations]
[Pages 55414-55435]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-25186]



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Part IV





Department of Education





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34 CFR Parts 600 and 602



Institutional Eligibility Under the Higher Education Act of 1965, as 
Amended, and the Secretary's Recognition of Accrediting Agencies; Final 
Rule

Federal Register / Vol. 74, No. 206 / Tuesday, October 27, 2009 / 
Rules and Regulations

[[Page 55414]]


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DEPARTMENT OF EDUCATION

34 CFR Parts 600 and 602

RIN 1840-AD00
[Docket ID ED-2009-OPE-0009]


Institutional Eligibility Under the Higher Education Act of 1965, 
as Amended, and the Secretary's Recognition of Accrediting Agencies

AGENCY: Office of Postsecondary Education, Department of Education.

ACTION: Final rule.

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SUMMARY: The Secretary amends its regulations governing institutional 
eligibility and the Secretary's recognition of accrediting agencies. 
The Secretary is amending these regulations to implement changes to the 
Higher Education Act of 1965, as amended (HEA), resulting from 
enactment of the Higher Education Reconciliation Act of 2005 (HERA), 
and the Higher Education Opportunity Act (HEOA), and to clarify, 
improve, and update the current regulations.

DATES: These regulations are effective July 1, 2010.

FOR FURTHER INFORMATION CONTACT: Ann Clough, U.S. Department of 
Education, 1990 K Street, NW., Room 8043, Washington, DC 20006-8542. 
Telephone: (202) 502-7484 or via the Internet at: ann.clough@ed.gov.
    If you use a telecommunications device for the deaf (TDD), call the 
Federal Relay Service (FRS), toll free, at 1-800-877-8339.
    Individuals with disabilities can obtain this document in an 
accessible format (e.g., braille, large print, audiotape, or computer 
diskette) on request to the contact person listed in this section.

SUPPLEMENTARY INFORMATION: On August 6, 2009, the Secretary published a 
notice of proposed rulemaking (NPRM) for the regulations governing 
institutional eligibility and the Secretary's recognition of 
accrediting agencies in the Federal Register (74 FR 39498).
    In the preamble to the NPRM, the Secretary discussed on page 39499 
the major regulations proposed in that document to implement the 
changes made to the HEA by the HERA and the HEOA, including the 
following:
     Amending Sec. Sec.  600.2 and 602.3 to include the 
statutory definition of ``distance education'', and adding a definition 
of ``correspondence education'' to Sec.  600.3.
     Amending Sec.  602.3 to include a definition of a ``direct 
assessment program'', an instructional program that uses or recognizes 
direct assessment of a student's learning in lieu of credit or clock 
hours.
     Amending Sec.  602.3 to include a definition of a ``teach-
out plan'' and Sec.  602.24 to require agencies to require the 
institutions they accredit to submit a teach-out plan to the agency 
under certain circumstances.
     Amending Sec. Sec.  602.16, 602.17, 602.18 and 602.27 to 
implement several new requirements pertaining to distance education and 
correspondence education.
     Amending Sec. Sec.  602.18, 602.23 and 602.25 to expand 
due process requirements for agencies.
     Amending Sec.  602.24 to require agencies to confirm that 
institutions they accredit have transfer of credit policies.
     Amending Sec.  602.15 to require that accreditation team 
members be well-trained and knowledgeable about their responsibilities 
regarding distance education.
     Amending Sec.  602.19 to require that agencies monitor 
enrollment growth at institutions they accredit.
     Amending Sec.  602.26 to expand agency disclosure 
requirements. (See section 496(c)(7) of the HEA).
    In addition, on pages 39499 through 39500 of the preamble to the 
NPRM, the Secretary discussed proposed changes to existing regulations 
governing institutional eligibility by amending the definition of 
``correspondence course'' to be compatible with the new definition of 
``correspondence education'' in the accrediting agency recognition 
regulations.
    Further, the Secretary discussed the following proposed changes to 
existing regulations governing the process for recognizing accrediting 
agencies:
     Amending Sec.  602.3 to include a definition of 
``recognition''.
     Amending Sec. Sec.  602.15 and 602.27 to modify record-
keeping and confidentiality requirements.
     Amending subpart C by combining current subparts C and D 
into one subpart in order to streamline procedures for agency review; 
establishing the senior Department official as the deciding official, 
with appeal to the Secretary; and providing a list of various laws 
regarding public requests for information with which the Secretary must 
comply.
     Amending Sec.  602.22 to clarify existing requirements 
related to substantive change and add flexibility to accrediting 
agencies in granting prior approval of additional locations under 
specified circumstances.
    As the result of public comment, the final regulations contain a 
significant change in the due process provisions regarding appeals 
panels. In addition to these changes, these final regulations make a 
number of minor technical corrections and conforming changes. Changes 
that are statutory or that involve only minor technical corrections are 
generally not discussed in the Analysis of Comments and Changes 
section.

Analysis of Comments and Changes

    The regulations in this document were developed through the use of 
negotiated rulemaking. Section 492 of the HEA requires that, before 
publishing any proposed regulations to implement programs under title 
IV of the HEA, the Secretary must obtain public involvement in the 
development of the proposed regulations. After obtaining advice and 
recommendations, the Secretary must conduct a negotiated rulemaking 
process to develop the proposed regulations. All proposed regulations 
must conform to agreements resulting from the negotiated rulemaking 
process unless the Secretary reopens that process or explains any 
departure from the agreements to the negotiated rulemaking 
participants.
    These regulations were published in proposed form on August 6, 
2009, in conformance with the consensus of the negotiated rulemaking 
committee. Under the committee's protocols, consensus meant that no 
member of the committee dissented from the agreed-upon language. The 
Secretary invited comments on the proposed regulations by September 8, 
2009. Twenty-one parties submitted comments. An analysis of the 
comments and the changes in the regulations since publication of the 
NPRM follows.
    We group major issues according to subject, with appropriate 
sections of the regulations referenced in parentheses. We discuss other 
substantive issues under the sections of the regulations to which they 
pertain. Generally, we do not address technical and other minor changes 
and suggested changes the law does not authorize the Secretary to make. 
We also do not address comments pertaining to issues that were not 
within the scope of the NPRM.

Definitions

Correspondence Course (Sec.  600.2)

    Comment: Several commenters expressed their support for the revised 
definition of ``correspondence course'' in 34 CFR 600.2, noting that it 
draws a useful distinction between this mode of educational delivery 
and distance education.

[[Page 55415]]

    Discussion: We appreciate the commenters' support.
    Changes: None.

Compliance Report (Sec.  602.3)

    Comment: One commenter questioned the meaning of the phrase 
``demonstrate that the agency has addressed deficiencies specified'' in 
the definition of ``compliance report'' in Sec.  602.3. The commenter 
noted that ``deficiencies'' could range from an agency's complaint 
procedure not including contact information to an agency's finances 
being in precarious shape and questioned whether in all cases an agency 
would be expected to submit a compliance report.
    Discussion: The definition provides that a compliance report must 
address deficiencies that are specified in a decision letter from the 
senior Department official or the Secretary. The senior Department 
official or Secretary will make a judgment, based on the record and the 
recommendations of the Advisory Committee and staff, about what must be 
addressed in the compliance report.
    Changes: None.

Recognition (Sec.  602.3)

    Comment: One commenter asked for further information about what the 
term ``effective'' means in the phrase ``is effective in its 
application of those criteria.''
    Discussion: The phrase ``apply effectively'' is taken directly from 
section 496(l) of the HEA and pertains to the Secretary's recognition 
decision. ``Effective application'' requires a demonstration on the 
part of the agency that it has followed through on its written policies 
and standards to provide, through its accrediting activities and each 
accrediting decision, a reliable judgment about the quality of 
postsecondary education. Under the statute, the Secretary is required 
to determine whether an agency is in compliance with the criteria for 
recognition. Compliance is determined based on a review of an agency's 
policies and its effective application of those policies. The 
discussion regarding subpart C later in this preamble explains this 
concept more thoroughly.
    Changes: None.

Other Major Issues

Administrative and Fiscal Responsibilities (Sec.  602.15)

    Comment: Two commenters raised concerns about the potential for an 
increase in the volume of information an agency will have to maintain 
under Sec.  602.15(b)(2). This provision requires an agency to maintain 
records of all decisions made throughout an institution's or program's 
affiliation with the agency regarding the accreditation and 
preaccreditation of any institution or program and substantive changes, 
including all correspondence that is significantly related to those 
decisions. One of the commenters, while generally supporting the 
changes made to this section, requested that the Department strike the 
phrase ``including all correspondence that is significantly related to 
those decisions;'' and apply the requirement only to final agency 
determinations. The second commenter made a similar request. Another 
commenter, while supportive of the reduction in the amount of material 
an agency will have to retain over the long term, indicated that the 
description of which records must be retained was ambiguous.
    Another commenter raised a concern about the language in Sec.  
602.15(a)(2), regarding the requirement for an agency to ensure that 
those individuals conducting on-site reviews are adequately trained. 
The commenter stated that use of the word ``trained'' may lead to the 
Department establishing minimum standards for an acceptable training 
program.
    Discussion: An important change to this section of the regulations 
includes the change in timeframe (one full accreditation cycle) for 
which an agency must maintain records. Under current regulations, an 
agency must maintain complete and accurate records for the last two 
full accreditation or preaccreditation reviews of each institution or 
program it accredits. The amended Sec.  602.15(b) requires the 
maintenance of records for only the last full accreditation or 
preaccreditation review. Additionally, the requirement that an agency 
maintain all decisions regarding the accreditation and preaccreditation 
of any institution or program, including all correspondence that is 
significantly related to those decisions, is not new; it has been in 
the regulations for a number of years. Similarly, although the current 
regulations do not explicitly mention documents relating to substantive 
change decisions, the requirement for agencies to maintain these 
documents exists under the regulatory requirement that agencies 
maintain all documents related to accrediting decisions and special 
reports. While the amended regulations now explicitly include a 
retention requirement for decisions relating to substantive changes, 
they create no additional burden, and the reduction in the number of 
cycles for which information must be maintained should significantly 
reduce the overall burden for agencies.
    Agencies must retain key records pertaining to each decision in 
order to fulfill their role as gatekeepers for Federal programs. 
Agencies have not always been able to provide the Department with 
information related to substantive changes. Given the significant 
increase in substantive changes over time, this documentation is 
critical. The Department does not agree that the description of the 
required documents is ambiguous, as an agency is fully aware of its 
requirements for accreditation, preaccreditation, and substantive 
change decisions and will be expected to retain those and the other 
required documents.
    Finally, the use of the word ``trained'' in Sec.  602.15(a)(2) is 
not new. Current regulations contain the same requirement. The language 
in the new regulations makes clear that the training provided by the 
agency should be appropriate for the individual's role.
    Changes: None.

Accreditation and Preaccreditation Standards (Sec.  602.16)

    Comment: One commenter raised concerns about the effects of the 
statutory change on Sec.  602.16(a)(1)(i). The statute allows an agency 
to apply different standards for different institutions and programs, 
established by the institution. The commenter expressed confusion about 
how this provision relates to existing regulatory language that an 
agency's standards assess an institution's or program's success with 
respect to student achievement in relation to the institution's mission 
and to the new statutory provision reflected in Sec.  602.16(f)(2). The 
commenter inquired whether an accrediting agency would be required to 
permit an institution to set its own standards for student achievement 
in light of a self-defined mission. For example, the commenter asked, 
would an agency have to permit an institution to set its own standards 
for job placement for an institution whose self-defined mission 
involves serving an economically challenged city or region? Further, 
the commenter asked whether an agency would be required to accept an 
institution's demand that it apply different standards to one or more 
of an institution's approved additional locations. A second commenter 
expressed ``ardent support'' of the revisions to Sec. Sec.  
602.16(a)(1)(i) and 602.16(f).
    Discussion: As provided in Sec.  602.16(f)(1), an accrediting 
agency has the authority to set, with the involvement of its members, 
and to

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apply accreditation standards for or to institutions or programs that 
seek review by the agency. This accrediting agency authority remains 
even if, as provided in Sec.  602.16(f)(2), an institution develops and 
uses its own standards to demonstrate its success with respect to 
student achievement, which may be considered as part of any 
accreditation review. In that case, the accrediting agency would need 
to make a judgment about whether an institution developed and used 
reasonable standards to demonstrate its success with respect to student 
achievement. Likewise, an accrediting agency would not be required to 
accept an institution's demand that it apply different standards to one 
or more of an institution's approved locations. We appreciate the 
second commenter's support.
    Changes: None.

Distance Education and Correspondence Education (Sec.  602.17)

    Comment: None.
    Discussion: The Department determined that there was an error in 
Sec.  602.17(g)(1)(iii) with the use of the word ``identification'' in 
the phrase ``that are effective in verifying student identification.'' 
The appropriate word to use in the phrase is ``identity'', not 
``identification.'' Verifying student identification is making certain 
that an ID card is not a fake. Verifying student identity is making 
certain that the student is who he or she is purporting to be. Under 
the statute, agencies are required to do the latter.
    Changes: Section 602.17(g)(1)(iii) has been amended by replacing 
the word ``identification'' with the word ``identity''.
    Comment: One commenter questioned whether the requirements proposed 
in Sec.  602.17 for verifying the identity of distance education and 
correspondence education students go far enough. The commenter noted a 
distinction between systems that verify the identity of an individual 
through the use of measures such as personal identification numbers 
(PINs), passwords, and knowledge-based questions, and those that 
authenticate an individual's identity by means of anatomical or 
behavioral characteristics unique to the individual, such as 
fingerprints or unique patterns of movement. The commenter suggested 
that continued use of secure logins and passwords as the sole means of 
identification is inconsistent with the intent of the statutory change, 
and claimed that only biometric-based authentication can provide 
positive identification. The commenter described software that can be 
used to capture a student's movements and create a unique biometric 
student identity that can be used to ensure that the person who 
registers for an online course is the person who does the work and 
receives the credit. A second commenter supported the proposed language 
and called the provision a common-sense rule.
    Discussion: The regulations governing verification of student 
identity were developed using information provided during the 
negotiated rulemaking discussions and the explanation of the new 
requirement that was included in the conference report accompanying the 
HEOA (H. Rep. 110-803, p. 567). In explaining the intent of the new 
statutory provision that agencies require institutions that offer 
distance education or correspondence education to have processes for 
establishing that the students who register for courses are the same 
students who complete the program and receive the credit, the 
conference report stated that institutions are expected to have 
security mechanisms, such as identification numbers or other pass code 
information, in place and to use them each time a student participates 
online. Therefore, the continued use of PINs and passwords is 
consistent with both the statutory language and the intent of the 
Congress.
    In the conference report, it is clear that Congress anticipated 
that as new identification technologies are developed and become more 
mainstream and less expensive, agencies and institutions would consider 
using them. For this reason, the regulations provide for the use of new 
technologies and practices that are effective in verifying the identity 
of students, in addition to methods such as secure logins, pass codes, 
and proctored examinations. There are at least two reasons for not 
mandating specific types of identity verification procedures in the 
regulations: Cost and availability. Different types of institutions 
have different levels of risk, and a technology that one institution 
considers necessary and affordable may be neither needed nor cost-
effective at another institution. It would also be inappropriate for 
the Department to include specific institutional requirements in its 
regulations that govern the recognition of accrediting agencies.
    Changes: None.

Due Process (Sec. Sec.  602.18; 602.25)

    Comment: One commenter noted the addition to Sec.  602.18, Ensuring 
consistency of decision making, of new paragraphs (a) and (e), which 
require agencies to have written specification of the requirements for 
accreditation that include clear standards for an institution or 
program to be accredited and to provide an institution or program with 
a detailed written report that clearly identifies any deficiencies in 
the institution's or program's compliance with the agency's standards. 
This commenter asked about the standards and the reporting requirements 
for non-compliance that are envisioned under these paragraphs. The 
commenter asked whether consistency was expected among classrooms, 
programs, or campuses.
    Regarding the due process provisions set forth in Sec.  602.25, 
several commenters recommended changes to the regulations governing 
appeals panels, specifically Sec.  602.25(f)(1)(iii). A number of 
commenters provided alternate language. Many of the commenters 
recommended permitting the appeals panel to remand cases to the 
original decision-making body. Most of the commenters who made this 
suggestion wanted to delete the authority of the appeals panel to amend 
or reverse the adverse action of the original decision-making body; 
other commenters wanted the appeals panel to also have the authority to 
remand cases as a fourth option. In addition, most of the commenters 
who provided alternate language wanted to amend the language that 
requires the original decision-making body to act in a manner 
consistent with the appeals panel's findings or decision, by requiring 
instead that the original decision-making body give deference or due 
consideration to the appeals panel's decision. One commenter wanted to 
delete this language.
    The rationale provided to support the recommended changes varied, 
but there were several major points. Many commenters questioned the 
authority of the appeals panel to render a final decision. Several 
commenters suggested that the reading of the statute to imply that 
appeals panels have the authority to make final accreditation decisions 
rested solely on the lack of a comma in the language of the final bill. 
They claimed that the appeals panel was not intended to render a final 
adverse decision; rather, they claimed, the panel was to conduct a 
hearing prior to the final decision of the accrediting body. One 
commenter specifically stated that the new provisions for findings of 
appeals panels are not in the statute and expressed the view that the 
findings of the appeals panels would compete with the independent, 
decision-making role of agencies.
    One commenter opined that the new appeals panel provisions would 
create a problem because final accreditation

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decisions may be made by an entity, an appeals panel, that is not 
recognized by the Secretary. Other commenters claimed that the new 
provision conflicts with regulatory provisions for recognition of 
accrediting agencies and said that neither the law nor the regulations 
provide for the Secretary to recognize appeals panels. A few commenters 
stated that requiring appeals panels to make decisions is inconsistent 
with the Department's prior position that accreditation decisions may 
be made only by properly composed decision-making bodies recognized by 
the Department. Another commenter opined that the new provisions 
undermine the traditional purpose served by accrediting appeals and 
violate the independence of the accrediting body.
    Some commenters said the new requirements for appeals panels would 
impair the normal function of the accreditation process because even 
though accreditation decisions are based on a number of factors, an 
institution or program may appeal only one or two factors; thus, they 
claimed, even if those one or two findings are overturned, an adverse 
action may still be warranted. Other commenters said that an action to 
amend or reverse a decision can occur only if an appeals panel conducts 
a new substantive review, rather than a review of the decision-making 
process, and that appeals panels typically lack the expertise to assess 
content-specific compliance with accreditation standards. One commenter 
said that accrediting bodies do not produce a record that allows for 
reconsideration of matters of substance. Another commenter noted that 
because the original body conducts a significant amount of research and 
spends time making decisions, that body has an intimate and 
comprehensive understanding of the factual situation at hand and it 
would not be appropriate for an appeals panel to make a final decision.
    Commenters also expressed concern that decisions will be made by 
smaller and less diverse bodies, ones that typically meet infrequently 
and do not have the experience of the original decision-making body; 
that the new provision will create situations in which decisions of 
appeals panels may be inconsistent with other agency decisions; that 
the change to the regulations will lead to many unwarranted appeals; 
and that the change will require training of appeals panels.
    Several commenters supported allowing an appeals panel to remand a 
case to the original decision-making body.
    Several commenters referenced appellate court processes and 
suggested that some accrediting agencies might prefer that appeals 
panels remand cases back to the original decision-making body with 
instructions either for implementation of a decision or for the 
consideration of factors to be used to render a decision consistent 
with the appeals panel decision.
    One commenter said that providing the option to remand cases would 
provide more flexibility to agencies in developing their appeal 
process. This commenter suggested a change to provide agencies with the 
option of either giving appeals panels final decision-making authority 
or requiring that the appeals panel either affirm the original decision 
or remand the case. The commenter suggested that a remand could include 
a modification of the original decision.
    One commenter questioned whether reversal of a denial of 
recognition means that an appeals panel would be empowered to determine 
the period of accreditation. Another commenter appreciated the 
Department's attempt to provide for implementation of the appeals 
panel's decision by the original decision-making body, but said it was 
not clear what was meant by requiring that the original decision-making 
body's action must be consistent with the appeals panel decision. One 
other commenter asked about the scope of authority retained by an 
accrediting agency that reserves the right to implement appeals panel 
decisions.
    One commenter requested that Sec.  602.25(h)(1)(iii), regarding 
reconsideration of adverse actions based solely on financial criteria, 
be deleted from the regulations, but cited no authority for the 
request.
    Discussion: It is important to note that the HEOA, in amending 
section 496(a)(6) of the HEA, included the requirement for clear and 
consistent accreditation standards and specification of any 
deficiencies, in addition to providing additional requirements 
regarding the appeal process. Clear and consistent standards, which let 
institutions and programs know what they are being measured against, 
and detailed written descriptions of any deficiencies identified by the 
accrediting agency, are critical to providing an effective due process 
procedure. An agency is expected to apply its standards consistently 
across either the programs or the institutions it accredits, as 
applicable.
    The Department acknowledges that there are situations, such as 
reversal of a decision to withdraw accreditation, in which it is 
appropriate, and may be necessary, to involve the original decision-
making body in a revised decision. Because of these situations, the 
Department agreed that agencies would have the option of giving the 
original decision-making bodies the responsibility to implement 
decisions, as long as the implementation was consistent with the 
appeals panel's decision. However, several commenters made a persuasive 
argument that appeals panels should also have the option of remanding a 
case to the original decision-making body. Therefore, the language in 
the proposed regulations has been changed to give appeals panels the 
option of remanding cases.
    However, the Department is concerned that without making additional 
changes, the regulations would be ambiguous and subject to an 
interpretation that would allow agencies to write their procedures to 
provide that their appeals panels are authorized only to affirm a 
decision or order a remand. This reading would not be consistent with 
Congressional intent, as the appeal would then be simply an additional 
procedural step involving a body that has no ultimate authority to 
effect a change in the accrediting decision. Therefore, the language in 
the proposed regulations has been changed to specify that an appeals 
panel has and uses the authority to affirm, amend, or reverse adverse 
actions of the original decision-making body, and does not serve only 
an advisory or procedural role. The language regarding affirmation, 
reversal, or amendment reflects a straightforward reading of Congress's 
directives to agencies to provide for appeals in front of a different 
decision-maker.
    The Department agrees with those commenters who note that the new 
regulations may necessitate changes in agency procedures and the 
structure of the appeals panels. To implement the HEOA, some agencies 
may need to seek recognition of their appeals panels. Appeals panels 
will need to meet the requirements for agency recognition, such as 
having a public member, as provided in Sec. Sec.  602.14(b)(2) and 
602.15(a)(3).
    Under the HEOA, appeals panels are subject to a conflict of 
interest policy and may not include any current members of the 
underlying decision-making body that made the adverse decision. The 
Department reads these new provisions as reflecting Congressional 
intent that appeals panels be decision-making bodies that address

[[Page 55418]]

substantive matters, as necessary, not just matters relating to 
process. Therefore, the entire accreditation process, including 
accreditation decisions, must be well-documented. The Department 
recognizes that agencies may need to adopt new procedures for 
documenting decisions and to ensure that appeals panel members have 
knowledge of prior agency decisions so the panel's actions and 
decisions are consistent with agency policies and requirements. Under 
Sec.  602.15(a)(2), agencies also must provide sufficient training to 
appeals panel members to ensure that these members have the requisite 
background to make sound decisions.
    We disagree with the commenter who suggested that we remove Sec.  
602.25(h)(1)(iii). This section is needed to implement the new 
statutory provision that an institution or program otherwise subject to 
a final adverse action may seek agency review of significant new 
financial information if it meets certain conditions, including that 
the review take place before a final adverse action that is based 
solely upon failure to meet financial criteria.
    Changes: Section 602.25(f)(1) has been amended by adding a new 
section 602.25(f)(1)(iii) that requires appeals panels to have and use 
the authority to make decisions to affirm, amend, or reverse actions of 
the original decision-making body, and specifies that an appeals panel 
does not serve only an advisory or procedural role. Section 
602.25(f)(1)(iii) in the proposed regulations has been renumbered and 
amended to allow appeals panels the option of remanding the accrediting 
action to the original decision-making body. The amendments to this 
provision require that a decision to remand identify the specific 
issues to be addressed and that the original decision-making body must 
act in a manner consistent with the appeals panel's decision or 
instructions.

Monitoring and Reevaluation of Accredited Institutions and Programs 
(Sec.  602.19)

    Comment: Several commenters raised concerns about the monitoring 
provisions in Sec.  602.19 and the impact the regulations would have on 
smaller accrediting agencies. These commenters requested that the 
regulations reflect the differences in size and scope of accreditors. 
One commenter noted that, although these regulations may have no real 
impact on agencies that recognize hundreds or thousands of 
institutions, an agency that recognizes 50 institutions may find them 
impossible to implement. Another commenter raised a different concern 
related to the scale of the monitoring required of accrediting 
agencies, stating that monitoring will not capture all non-compliance, 
and asked the Department to clarify its intent with these regulations.
    Still another commenter contended that the Department is exceeding 
its authority by requiring agencies to collect and analyze measures of 
student achievement, because the Department is not permitted to 
regulate student achievement. Another commenter asked for clarification 
about the implementation of the growth monitoring provisions contained 
in Sec.  602.19(e) of the regulations. Additionally, two commenters 
expressed support for the monitoring provisions contained in these 
regulations with one citing the ability of institutions to establish 
their own standards of student achievement and the other stating that 
these monitoring regulations will serve as a possible safeguard against 
waste, fraud, and abuse in the title IV student aid programs.
    Finally, one commenter raised a concern with the reporting 
requirement that applies to accrediting agencies that have added 
distance education or correspondence education to their scope of 
recognition by means of notification to the Department. The commenter 
asked if an institution that experiences an enrollment increase of 
distance education students from ten students to fifteen students must 
go through what the commenter described as an elaborate process.
    Discussion: These regulations recognize the need for flexibility 
raised by the commenters and provide this flexibility. The preamble to 
the NPRM addressed the Department's desire to ensure flexibility for 
accrediting agencies in their monitoring of institutions and programs 
while meeting the intent of the law. These regulations reflect 
statutory requirements and provide for greater consistency in 
identifying noncompliant institutions and programs while also 
accommodating the differences that exist across institutions and 
programs.
    The Department recognizes that accrediting agencies and the 
institutions and programs they accredit are diverse. Therefore, in 
addition to providing a framework for monitoring, the Department 
requires each agency to demonstrate why the approaches it takes to 
monitoring and evaluating its accredited institutions or programs are 
effective given the particular circumstances. Moreover, we expect 
reasonable and prudent implementation of the statute and regulations by 
the agencies. For each institution or program accredited, an agency 
should consider factors such as the size of the institution or program, 
the number of students, the nature of the programs offered, past 
history, and other knowledge the agency has about that institution or 
program, including previous reviews. The regulatory language provides 
accrediting agencies with flexibility regarding their monitoring of 
institutions and programs and at the same time ensures they review and 
analyze key data and indicators.
    The Department does not agree that it is exceeding its authority by 
requiring an agency to monitor measures of student achievement. The 
Department is not specifying, defining, or prescribing the standards 
that accrediting agencies use to assess an institution's success with 
respect to student achievement. Rather, student achievement is one of 
several areas that an agency must review when monitoring the 
institutions or programs it accredits. Further, under these regulations 
the approaches taken by the agency must be consistent with Sec.  
602.16(f). This section provides that an agency is not restricted from 
setting and applying accreditation standards for or to institutions or 
programs seeking review and that an institution is not restricted from 
developing and using institutional standards to show its success with 
respect to student achievement, which achievement may be considered as 
part of any accreditation review.
    Finally, the growth monitoring provision in Sec.  602.19(e) 
requires certain agencies to report to the Secretary information about 
any institution they accredit that experiences an increase in 
institutional headcount enrollment of 50 percent or more within one 
institutional fiscal year, not a 50 percent increase in headcount 
enrollment in a particular program or particular educational delivery 
modality. It is important to note that Sec.  602.19(e) only affects 
institutional accrediting agencies and predominantly programmatic 
accrediting agencies that accredit freestanding institutions that 
notify the Secretary of a change in scope of recognition to include 
distance education or correspondence education in accordance with Sec.  
602.27(a)(5).
    Changes: None.

Operating Procedures All Agencies Must Have (Sec.  602.23)

    Comment: One commenter did not understand the rationale for the 
removal of the phrase ``upon request'' from Sec.  602.23(a), regarding 
making certain written materials and information

[[Page 55419]]

available to the public. The same commenter expressed support for the 
additional language added to the end of Sec.  602.23(c)(1), which seeks 
to ensure that institutions have sufficient opportunity to provide a 
response to a third-party complaint before an accrediting agency 
completes the review of the complaint and makes a decision.
    Discussion: The phrase ``upon request'' was removed in response to 
a statutory change. Section 496(a)(8) of the HEA requires agencies to 
make available to the public, upon request, a summary of any review 
resulting in a final accrediting decision involving denial, 
termination, or suspension of accreditation, together with the comments 
of the affected institution. Section 496(c)(7) of the HEA, which was 
added in the 2008 reauthorization, requires agencies to make available 
to the public a summary of agency or association actions, which 
includes a final denial, withdrawal, suspension, or termination of 
accreditation, and any findings made in connection with the action 
taken, together with the official comments of the affected institution. 
We consider the most recent language to reflect Congressional intent 
and, accordingly, made the provision of information to the public 
without a specific request for the information a regulatory 
requirement. We appreciate the support for the change to Sec.  
602.23(c)(1).

Teach-Out Plans and Agreements (Sec.  602.24)

    Comment: Two commenters noted that agencies must require the 
institutions they accredit to submit a ``teach-out plan'' to the agency 
under the circumstances specified in Sec.  602.24(c)(1) and expressed 
concern that agencies may have little or no ability to enforce such a 
requirement. One of these commenters stated that the requirement is 
unrealistic. The other commenter concluded that an agency must have a 
written policy to require plans from all institutions that meet the 
regulatory provisions, even institutions that do not participate in the 
title IV, HEA programs. Regarding ``teach-out agreements,'' one 
commenter asserted that the regulations specify that an agency may not 
approve an agreement unless it is with a qualified teach-out 
institution and characterized that requirement as a matter over which 
the accrediting agency may have no control.
    Two commenters supported the new teach-out provisions. The 
commenters noted that the regulations regarding ``teach-out plans'' and 
``teach-out agreements'' will benefit the affected students and the 
institutions serving those students, as well as protect both their 
interests and the interests of agencies and the Department.
    Discussion: The teach-out regulations reflect statutory provisions 
in section 496(c)(3) of the HEA. The statute does not distinguish 
between participating and non-participating institutions with regard to 
teach-out plan policies. Therefore, agencies must have a policy to 
require ``teach-out plans'' from all institutions that meet one of the 
circumstances described, even if the institution at issue does not have 
a program participation agreement with the Department. The Department 
does not agree with the assertion that an agency may lack control over 
the approval of a ``teach-out agreement.'' The regulations specify that 
agencies must require the institutions they accredit and that enter 
into ``teach-out agreements'' to submit those agreements for approval. 
The agency has control over whether it approves a ``teach-out 
agreement,'' and the agency may approve a ``teach-out agreement'' only 
if the agreement complies with the requirements of Sec.  602.24(c)(5).
    Changes: None.

Transfer of Credit (Sec.  602.24)

    Comment: One commenter recommended deleting Sec.  602.24(e)(2), 
which requires that agencies confirm that institutions have transfer of 
credit policies that include a statement of the criteria established by 
the institution regarding the transfer of credit earned at another 
institution of higher education. The commenter stated that conforming 
transfer of credit policies is impossible due to the variety of 
situations in which transfers of credit may arise. The commenter also 
said that requiring institutions to specify detailed transfer of credit 
criteria could inadvertently reduce student mobility. Another commenter 
supported the wording in the proposed regulations regarding public 
disclosure of transfer of credit policies.
    Discussion: Section 496(c)(7) of the HEA requires accrediting 
agencies to confirm that an institution has transfer of credit policies 
that include a statement of the criteria established by the institution 
regarding the transfer of credit earned at another institution. The 
regulations reflect this requirement, and we do not have the authority 
to modify the requirement.
    Changes: None.

Other Information an Agency Must Provide the Department (Sec.  602.27)

    Comment: Several commenters expressed concern about Sec.  
602.27(b). This provision requires any agency that has a policy 
regarding notification to an institution or program of contact with the 
Department, as it pertains to information provided to the Secretary 
about an institution it accredits failing to meet its title IV program 
responsibilities or possibly engaging in fraud or abuse, to review on a 
case-by-case basis the need for confidentiality of the contact with the 
Department. This section also requires that, in the event the 
Department specifically requests the contact remain confidential, the 
agency consider that contact confidential. The commenters stated that 
failing to inform an institution of a contact or inquiry made by the 
Department adversely affects the relationship between the institution 
or program and the agency by undermining the trust relationship between 
the two. Another commenter raised a concern that the changes to Sec.  
602.27(b), taken together with the authority provided the Department in 
Sec.  602.27(a)(7) to request information that may bear upon an 
institution's compliance with its title IV program responsibilities, is 
inconsistent with the obligation of an agency to allow its institutions 
to respond to allegations made against them. Two commenters requested 
that Sec.  602.27(b) be removed and another commenter requested that 
all of Sec.  602.27 be removed.
    Discussion: The Department understands and respects the need for an 
honest and open exchange between an institution or program and its 
accreditor. During negotiated rulemaking the Department agreed to 
change its initial approach to this regulation, which would have 
prohibited an agency from having a policy providing notice to an 
institution when the agency was contacted by the Department. We do not 
agree that these regulations, as amended, undermine the relationship 
between the accreditor and its institutions or programs or that the 
language is inconsistent with an agency's obligation to afford its 
institutions or programs an opportunity to respond to allegations. 
Rather, they honor that relationship by ensuring that, absent a 
specific request for confidentiality from the Department, an agency may 
notify an institution of inquiries it receives from the Department as 
long as the agency has concluded, based on a careful consideration of 
the circumstances, that disclosure is appropriate. Moreover, the 
Department also has a fiduciary responsibility to protect the Federal 
fiscal interest as well as the interest of students. These regulations 
ensure that the Federal fiscal interest is not put at risk by 
compromising the Department's

[[Page 55420]]

investigations of potential fraud or abuse in the title IV programs. As 
a condition of participating in the title IV programs, each institution 
acknowledges the authority of the Department, accrediting agencies, and 
other gatekeepers to share information about the institution.
    Changes: None.

Subpart C--The Recognition Process

    Comment: Several commenters asked for clarification about how 
Department staff will evaluate an agency's effective application of its 
standards. One commenter expressed concern about the subjectivity of 
the evaluation and the lack of bright-line standards for Department 
staff to enforce. Another commenter asked for clarification about what 
constituted the submission of ``evidence, including documentation'' 
under Sec.  602.31(a)(2) and expressed concern that the requirement to 
provide evidence to Department staff could evolve into an unreasonable 
requirement for agencies.
    Discussion: The concept of ``effective application'' comes from 
section 496(l) of the HEA and is not new. It is discussed here 
alongside the provision of evidence because the two concepts are 
related. The phrase ``effective application'' in these new regulations 
replaces the phrase ``performance with respect to the criteria'' in the 
current regulations. The Department selected the phrase ``effective 
application'' based on its origin in the statute and its greater 
specificity in describing the standard for an agency's compliance. The 
Department's evaluation of an agency is based on a review of the 
evidence provided by the agency that it has compliant policies and 
standards and that it effectively applies those standards.
    Evidence is submitted primarily in the form of documentation that 
substantiates the agency's claim that it effectively applies its 
standards. For example, agencies provide sample self-studies and team 
reports to substantiate that they apply their policies for requiring an 
in-depth self-study and an on-site review of their institutions or 
programs. Evidence may also be in the form of direct observation by 
Department staff during its on-site reviews of an agency's decision 
meeting or training session. Although testimony, written or oral, may 
accompany an agency's application for initial or continued recognition, 
a description of processes alone does not meet the Department's 
standard for evidence. This is illustrated in the example of an agency 
seeking initial recognition that provides evidence of policies and 
standards that appear to be compliant but that, upon further 
examination, are not effectively applied. Accordingly, review of 
whether agency standards are effectively applied is critical to ensure 
the quality of training and education offered by institutions and 
programs accredited by agencies that are recognized by the Secretary.
    The concept of ``effective application'' also allows for a 
reasonable degree of judgment in cases where a particular policy 
involves circumstances that do not occur with any regularity. For 
example, an agency may have compliant ``teach-out'' policies, but its 
accredited institutions may never have had to submit a teach-out plan 
or agreement for approval by the agency. In this example, no evidence 
of application of standards would be necessary.
    The standard for evaluating an agency's ``effective application of 
standards'' on the basis of ``evidence, including documentation,'' 
strikes a balance between the commenters' concerns about the absence of 
bright-line standards and the potential for unreasonable standards of 
evidence.
    Changes: None.
    Comment: One commenter objected to the entirety of subpart C and 
suggested that no changes be made to the current regulations.
    Discussion: Changes to subpart C were necessary to incorporate the 
new provisions of the HEA, including the procedures for review of 
agencies that have expanded their scope of recognition by notice, 
following receipt by the Department of information of an increase in 
headcount enrollment, and the authority of the National Advisory 
Committee on Institutional Quality and Integrity (``NACIQI'') in 
establishing the agenda. Other changes were necessary because the 
current regulations do not include procedures for review of 
applications for expansion of scope, procedures for review of agencies 
during the period of recognition, appeal procedures, and procedures for 
review of compliance reports defined under Sec.  602.3. Subpart C 
outlines and clarifies these procedures, making the Department's review 
process more transparent and increasing due process for agencies.
    Changes: None.
    Comment: Several commenters raised concerns about Sec.  602.31(f), 
which clarifies the limits on the Department's ability to keep 
confidential records submitted to the Department for the purposes of 
agency recognition by the Secretary. Some commenters stated their 
belief that all information institutions provide to their accreditors 
is subject to public disclosure. Other commenters stated their belief 
that the regulations require all documents submitted to the Department 
to be available for public disclosure via the Freedom of Information 
Act (FOIA). Some commenters want the Department to change the 
regulations to permit Department review of necessary documents to occur 
at agency offices, instead of requiring submission of the documents to 
the Department. Another commenter suggested that documents be submitted 
to the Department and later returned to the agency without copies being 
made or maintained by the Department.
    Discussion: The commenters misunderstand the requirements of Sec.  
602.31(f). The regulation applies to records the Department obtains 
during an agency's recognition proceedings, not to all documents an 
institution submits to its accrediting agency. The Department must 
comply with the HEA, the FOIA, the Federal Advisory Committee Act 
(FACA), and other applicable laws. These regulations reference the most 
commonly invoked of public disclosure laws and state that an agency may 
designate or identify information that the agency believes in good 
faith is exempt from disclosure in the event of a FOIA request. The 
regulations also make clear that agencies should submit only those 
documents required for Department review or specifically requested by 
Department officials.
    The Department understands the need for confidentiality between 
institutions and accrediting agencies. However, it is necessary for the 
Department both to maintain a complete and accurate record of documents 
to substantiate its review, and to comply with FOIA and other 
disclosure laws. The regulations provide several methods an agency can 
use to make it less likely that sensitive information it provides in 
recognition proceedings about the institutions or programs it accredits 
will be publicly disclosed, including redacting information that would 
identify individuals or institutions that is not essential to the 
Department's review of the agency.
    Changes: None.

Executive Order 12866

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

[[Page 55421]]

regulatory action'' as an action likely to result in a rule that may 
(1) have an annual effect on the economy of $100 million or more, or 
adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local or 
Tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule); (2) create serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impacts of 
entitlement grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order.
    Pursuant to the terms of the Executive Order, it has been 
determined that this final regulatory action will not have an annual 
effect on the economy of more than $100 million. Therefore, this action 
is not ``economically significant'' and not subject to OMB review under 
section 3(f)(1) of Executive Order 12866. Notwithstanding this 
determination, the Secretary has assessed the potential costs and 
benefits of this regulatory action and has determined that the benefits 
justify the costs.

Need for Federal Regulatory Action

    As discussed in the proposed regulations, these regulations are 
needed to implement the provisions of the HEA, as amended. In 
particular, these regulations address the provisions related to the 
recognition of accrediting agencies by the Secretary.
    In addition, these regulations are needed to ensure that the 
Department fulfills its fiduciary responsibility regarding the 
appropriate use of Federal funds made available by the Department to 
institutions of higher education under title IV of the HEA. The 
Secretary grants recognition to accrediting agencies that are 
considered by the Department to be reliable authorities regarding the 
quality of education or training offered by the institutions or 
programs they accredit. Congress requires that an institution of higher 
education be accredited by an agency recognized by the Secretary in 
order to receive Federal funds authorized under title IV, HEA programs.

Regulatory Alternatives Considered

    Alternatives to the regulations were considered as part of the 
rulemaking process. These alternatives were reviewed in detail in the 
preamble to the proposed regulations under both the Regulatory Impact 
Analysis and the Reasons sections accompanying the discussion of each 
proposed regulatory provision. To the extent that they were addressed 
in response to comments received on the proposed regulations, 
alternatives are also considered elsewhere in the preamble to these 
final regulations under the Discussion sections related to each 
provision. No comments were received related to the Regulatory Impact 
Analysis discussion of these alternatives.
    As discussed above in the Analysis of Comments and Changes section, 
the final regulations reflect statutory amendments included in the HEOA 
and one substantive revision made in response to public comments. The 
change did not result in revisions to cost estimates prepared for and 
discussed in the Regulatory Impact Analysis of the proposed 
regulations.

Benefit-Cost Analysis

Benefits

    The benefits of these final regulations include: ensuring that 
accrediting agencies are reliable authorities as to the quality of 
education or training offered by an institution or program they 
accredit; ensuring that the Department fulfills its fiduciary 
responsibility for institutional funding under title IV, HEA programs; 
and establishing consistency between statutory language and regulatory 
language. An additional benefit of the final regulations is providing 
accrediting agencies with greater clarity on regulations regarding the 
following: distance and correspondence education; accreditation team 
members; transfer of credit; teach-out plan approval; definition of 
recognition; demonstration of compliance; recognition procedures, 
including procedures for NACIQI; direct assessment programs; 
monitoring; substantive change; record keeping and confidentiality; and 
due process and appeals.

Costs

    These final regulations do not require accrediting agencies and 
institutions to develop new disclosures, materials, or accompanying 
dissemination processes. Other regulations generally require discrete 
changes in specific parameters associated with existing guidance rather 
than wholly new requirements. Overall, the Department believes that 
accrediting agencies wishing to continue to be recognized by the 
Secretary and institutions wishing to continue to participate in title 
IV, HEA programs have already absorbed most of the administrative costs 
related to implementing these final regulations. Marginal costs over 
this baseline are primarily related to one-time changes that are not 
expected to be significant.
    Elsewhere in this SUPPLEMENTARY INFORMATION section we identify and 
explain burdens specifically associated with information collection 
requirements. See the heading Paperwork Reduction Act of 1995.

Accounting Statement

    In Table 1, we have prepared an accounting statement showing the 
classification of the expenditures associated with the provisions of 
these final regulations. As shown in the table, the Department 
estimates that these final regulations will increase expenditure by 
accrediting agencies, institutions of higher education, and the 
Department by a total of $114,850.

 Table 1--Estimated Expenditures Associated With the Provisions of Final
                               Regulations
------------------------------------------------------------------------
                            Entity                               Costs
------------------------------------------------------------------------
U.S. Department of Education.................................    $55,300
Accrediting agencies and institutions of higher education....     59,550
                                                              ----------
Total........................................................    114,850
------------------------------------------------------------------------

Regulatory Flexibility Act Certification

    The Secretary certifies that these final regulations will not have 
a significant economic impact on a substantial number of small 
entities. These final regulations affect accrediting agencies and 
institutions of higher education that participate in title IV, HEA 
programs. The U.S. Small Business Administration (SBA) Size Standards 
define organizations as ``small entities'' if they are for-profit or 
nonprofit organizations with total annual revenue below $5,000,000 or 
if they are organizations controlled by governmental entities with 
populations below 50,000.
    A significant percentage of the accrediting agencies and 
institutions participating in title IV, HEA programs meet the 
definition of ``small entities''. The Department estimates that 
approximately 40 accrediting agencies and 2,310 postsecondary 
institutions meet the definition of ``small entity''.
    While these accrediting agencies and institutions fall within the 
SBA size guidelines, these final regulations do not impose significant 
new costs on these entities. Specific burden concerns are discussed in 
more detail elsewhere in this preamble, primarily in the Paperwork 
Reduction Act of 1995 section.

[[Page 55422]]

Paperwork Reduction Act of 1995

    Sections 602.15, 602.19, 602.24, 602.25, 602.26, 602.27, 602.31, 
and 602.32 contain information collection requirements. Under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the Department has 
submitted a copy of these sections to OMB for its review.

Section 602.15--Administrative and Fiscal Responsibilities

    The final regulations require accrediting agencies to demonstrate 
certain administrative responsibilities, including maintenance of all 
accrediting documentation for each institution or program the agency 
accredits from the last full accreditation or preaccreditation review 
and all documents regarding substantive change decisions.
    The Department has determined that this modification to the current 
document retention requirements reduces the administrative burden to 
maintenance of only one full accreditation or preaccreditation review. 
Although this represents a reduction of the burden on agencies under 
OMB Control Number 1840-0788, the reduced hours for maintaining only 
one complete review cycle are negligible because the agencies already 
collect the information.

Section 602.19--Monitoring and Reevaluation of Accredited Institutions 
and Programs

    The final regulations require agencies to collect data to ensure 
that the institutions they accredit remain in compliance with their 
accrediting standards. Agencies must periodically collect and analyze 
key data and indicators, identified by the agency, including, but not 
limited to, fiscal information and measures of student achievement.
    In addition, the final regulations require agencies to annually 
monitor the enrollment growth of institutions or programs they 
accredit.
    The final regulations also require accrediting agencies that 
expanded their scope to include distance education or correspondence 
education by notice to the Secretary to monitor enrollment growth of 
the institutions they accredit that offer distance education or 
correspondence education. These agencies must report to the Department, 
within 30 days, any institution that experiences enrollment growth of 
50 percent or more during a fiscal year. The regulation only affects 
institutional accrediting agencies and programmatic accrediting 
agencies that accredit freestanding institutions that currently do not 
have distance education in their scope of recognition.
    The Department estimates that the final monitoring regulations will 
increase burden on accrediting agencies by a total of 182 hours under 
OMB Control Number 1840-0788.

Section 602.24--Additional Procedures Certain Institutional Accreditors 
Must Have

    The final regulations mandate that an accrediting agency require an 
institution it accredits to submit a teach-out plan for approval by the 
accrediting agency if any of following events occurs: The Department 
initiates an emergency action against an institution, or an action by 
the Secretary to limit, suspend, or terminate an institution 
participating in any title IV, HEA program; the accrediting agency acts 
to withdraw, terminate, or suspend the accreditation or 
preaccreditation of the institution; the institution notifies the 
agency that it intends to cease operations entirely or close a location 
that provides one hundred percent of at least one program; or a State 
licensing or authorizing agency notifies the agency that an 
institution's license or legal authorization to provide an educational 
program has been or will be revoked. If the teach-out plan requires a 
teach-out agreement, the regulations identify the components of the 
teach-out agreement.
    The Department estimates that the requirements related to 
submission of teach-out plans in the final regulations will place an 
additional burden on 70 institutions each year for a total of 280 hours 
under OMB Control Number 1840-0788.

Section 602.25--Due Process

    The final regulations provide for an institution's or program's 
right to appeal any adverse accrediting agency action before an appeals 
panel that is subject to a conflict of interest policy and does not 
contain members of the underlying decision-making body. An institution 
or program is provided a right for the review of new financial 
information, if it meets certain conditions, before the accrediting 
agency takes a final adverse action.
    The Department estimates that the appeals process in the final 
regulations will increase the burden on accrediting agencies by 3,050 
hours under OMB Control Number 1840-0788.

Section 602.26--Notification of Accrediting Decisions

    The final regulations require agencies to provide a written notice 
to the Secretary of any final decision that is considered by the agency 
to be an adverse action and of final decisions withdrawing, suspending, 
revoking, or terminating an institution's or program's accreditation or 
preaccreditation. Agencies are also required to make availab