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The Secretary amends the Student Assistance General Provisions regulations. These amendments are necessary to implement a new requirement in the Higher Education Act of 1965, as amended (HEA), added by the Improving America's Schools Act of 1994 (IASA),

FR part
V
Attachments:
PublicationDate: 11/25/95
FRPart: V
RegPartsAffected: Citation : (R)668.41
PageNumbers: 61423-61442
Summary: The Secretary amends the Student Assistance General Provisions regulations. These amendments are necessary to implement a new requirement in the Higher Education Act of 1965, as amended (HEA), added by the Improving America's Schools Act of 1994 (IASA), Pub. L. 103-382. The IASA provisions, titled the ``Equity in Athletics Disclosure Act'' (EADA), require certain co-educational institutions of higher education to prepare annually--and make available to students, potential students, and the public--a report on participation rates, financial support, and other information on men's and women's intercollegiate athletic programs. These regulations implement these new statutory requirements.
CommentDueDate:

      
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[


[Federal Register: November 29, 1995 (Volume 60, Number 229)]
[Rules and Regulations ]
[Page 61423-61442]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29no95-12]



[[Page 61423]]

_______________________________________________________________________

Part V





Department of Education





_______________________________________________________________________



34 CFR Part 668



_______________________________________________________________________



Student Assistance General Provisions; Final Rule


[[Page 61424]]


DEPARTMENT OF EDUCATION

34 CFR Part 668

RIN 1840-AC14


Student Assistance General Provisions

AGENCY: Department of Education.

ACTION: Final regulations.

-----------------------------------------------------------------------

SUMMARY: The Secretary amends the Student Assistance General Provisions
regulations. These amendments are necessary to implement a new
requirement in the Higher Education Act of 1965, as amended (HEA),
added by the Improving America's Schools Act of 1994 (IASA), Pub. L.
103-382. The IASA provisions, titled the ``Equity in Athletics
Disclosure Act'' (EADA), require certain co-educational institutions of
higher education to prepare annually--and make available to students,
potential students, and the public--a report on participation rates,
financial support, and other information on men's and women's
intercollegiate athletic programs. These regulations implement these
new statutory requirements.

EFFECTIVE DATE: These regulations take effect on July 1, 1996. However,
affected parties do not have to comply with the information collection
requirements in Sec. 668.41 and Sec. 668.48 until the Department of
Education publishes in the Federal Register the control numbers
assigned by the Office of Management and Budget (OMB) to these
information collection requirements. Publication of the control numbers
notifies the public that OMB has approved these information
requirements under the Paperwork Reduction Act of 1995.

FOR FURTHER INFORMATION CONTACT: Mr. David Lorenzo or Ms. Paula
Husselmann, U.S. Department of Education, 600 Independence Avenue, SW.,
ROB-3, room 3045, Washington, DC 20202-5346. Telephone: (202) 708-7888.
Individuals who use a telecommunications device for the deaf (TDD) may
call the Federal Information Relay Service (FIRS) at 1-800-877-8339
between 8 a.m. and 8 p.m., Eastern time, Monday through Friday.

SUPPLEMENTARY INFORMATION: The Student Assistance General Provisions
regulations (34 CFR part 668) apply to all institutions that
participate in the title IV, HEA programs. The changes in these
regulations are necessary to implement changes to the HEA made by the
Equity in Athletics Disclosure Act (EADA), which was included in the
Improving America's Schools Act of 1994 (IASA), Pub. L. 103-382,
enacted on October 20, 1994. The EADA requires that certain
institutions of higher education disclose annually--to students,
potential students, and the public--financial, participation, and other
information concerning the institution's women's and men's
intercollegiate athletic programs. The EADA is a ``sunshine'' law
designed to make ``prospective students and prospective student
athletes...aware of the commitments of an institution to providing
equitable athletic opportunities for its men and women students''
(IASA, section 360B(b)(7)).
The EADA does not require that this information be submitted to the
Federal Government. The Secretary may, however, request that
institutions of higher education that are subject to the EADA provide a
copy of the report in order to verify compliance with these
requirements. The EADA does require that all institutions subject to
its provisions make the information available to students, potential
students, and the public.

Background

On February 3, 1995, the Secretary published a Notice of Proposed
Rulemaking (NPRM) for part 668 in the Federal Register (60 FR 6940).
The NPRM included a discussion of the major issues surrounding the
proposed changes which will not be repeated here. The following list
summarizes those issues and identifies the pages of the preamble to the
NPRM on which the discussion of those issues can be found:
The Secretary proposed definitions of the terms ``intercollegiate
athletic program'' and ``varsity team'' and solicited comments as to
whether type or level of financial support should be part of the
definition of varsity team (page 6940).
The Secretary solicited comments on the date for schools to make
available the annual report of data beyond the statutory date of
October 1, 1996 for the first report (page 6940).
The Secretary requested comments on what definition of ``academic
year'' and ``undergraduate student'' should be employed in these
regulations (pages 6940-6941).
The Secretary requested comments on whether certain categories of
athletes, such as ``redshirts,'' should be counted as participants on a
team (page 6941).
The Secretary proposed a list of items to be included under the
category of ``operating expenses,'' interpreted the statute to require
the reporting of expenses incurred for both home and away contests, and
interpreted the statute to require the reporting of expenses in
categories specifically listed in the law. The Secretary also solicited
comments as to what items are included under the statutory categories
(page 6941).
The Secretary interpreted the statute to require institutions to
disclose two total amounts of athletically-related aid, one for male
athletes and one for female athletes. The Secretary also proposed that
the definition of athletically-related student aid for these provisions
be the same as that provided in section 485(e)(8) of the HEA, and
solicited comments on whether to apply this definition to particular
categories of students (page 6941).
The Secretary interpreted the statute to require institutions to
calculate a ratio of the total amount of athletic aid awarded to men to
the total amount of athletic aid awarded to women (page 6941).
The Secretary interpreted the statute to require institutions to
report the total expenditures used for recruiting male athletes, and
the total expenditures used for recruiting female athletes. The
Secretary also solicited comment on what items should be included as
``expenditures on recruiting'' (page 6941).
The Secretary interpreted the statute to require institutions to
report the total annual revenues for men's teams and the total annual
revenue for women's teams, and interpreted ``total annual revenues'' to
mean ``annual gross income.'' The Secretary also requested comments on
whether the definition of ``expenses'' here should follow that in
section 487 of the HEA, and whether the definition of ``total annual
revenues'' should follow the definition in 34 CFR 668.14 (pages 6941-
6942).
The Secretary interpreted the statute to require a report of
coaches' salaries on average across all men's sports, and on average
across all women's sports, for both head coaches and assistant coaches.
The Secretary also requested comments on a definition of ``salary,''
and whether the salary of a volunteer coach should be listed as zero
for averaging purposes (page 6942).
The Secretary requested comments on how information on co-
educational teams could be reported with a minimum of burden (page
6942).
The Secretary interpreted the statute to require reports to be
based on actual expenditures, not budgeted expenditures (page 6942).
The Secretary requested comments on how schools should report when
their academic year differs from their fiscal year (page 6942).
The Secretary requested comments on whether the provision of
substantially comparable data to an athletic

[[Page 61425]]
conference satisfies the requirements of the statute (page 6942).
The Secretary requested comments and suggestions on possible
formats for the report, and whether a mandatory format was necessary
(pages 6942-6943).
The Secretary requested comments and suggestions regarding the
availability and accessibility of the report (page 6943).
The following discussion describes the significant changes since
publication of the NPRM. These topics will be discussed in the order in
which they appear in the text of the regulations.

Section 668.41--Reporting and Disclosure

The Secretary has decided not to regulate where this report is to
be made available to students and the public, nor the specific
publications in which institutions must publish notice of its
availability. The Secretary has added a regulatory requirement that is
consistent with the statute in requiring institutions to make the
report available in easily accessible places and in a timely manner.
The discussion below provides guidance as to ways in which this
requirement may be satisfied.
With regard to the date for reporting the information listed in the
statute, the Secretary has decided to change the reporting date to
October 15 for years subsequent to 1996.

Section 668.48--Report on Athletic Program Participation Rates and
Financial Support Data

The Secretary does not provide any exemptions to institutions from
reporting the data listed in the statute. The Secretary does, however,
permit flexibility where appropriate in the manner in which
institutions may report certain data elements.
The Secretary provides in the regulations definitions of the terms
``reporting year'' and ``undergraduate student'' that allow
institutions, within certain limits, to use their customary definitions
of those terms. The Secretary also defines in the regulations the terms
``athletically-related student aid,'' ``institutional salary,''
``recruiting expenses,'' and ``varsity team.'' The Secretary also
includes an explanatory note discussing the term ``participant.''
The Secretary adds a regulatory requirement for an institution to
disclose as part of each annual report the list of recruiting expenses
on which it bases the figures it discloses as expenditures on
recruiting.
The Secretary interprets the statute to require institutions to
report an average of those salaries the institution pays to coaches as
compensation for coaching. The Secretary also interprets the statute to
require institutions to report any team expenses the institution
directly funds.
The Secretary provides as an appendix to these regulations an
optional form institutions may use to report the data required in the
regulations.

Preparation of Final Regulations

The Secretary has formulated these regulations in accordance with
Executive Order 12866, the Administration's initiative on regulatory
reinvention, and the Department's own principles for regulating. The
Secretary's goal is to regulate only when necessary, and then as
flexibly as possible, while implementing such rules as are essential to
advance the purpose of the statute. The Secretary has also placed
renewed emphasis on minimizing burden on institutions, and on making
regulations easy to read and understand.
The Department expects good faith efforts from institutions, and
has tried wherever possible to provide guidance regarding reasonable
ways of complying with the statute rather than promulgating overly
prescriptive rules. The Department relies upon its experience with the
community as to the level of guidance necessary to ensure compliance
and full knowledge of the Department's expectations. However, the
Department also recognizes that any new reporting requirements, such as
those contained in this statute, may produce unforeseen questions, or
problems of compliance and interpretation. In the event that such
questions or problems arise, the Department may revisit these
regulations or provide further guidance to resolve those matters.

Analysis of Comments and Changes

In response to the Secretary's invitation in the NPRM, 26 parties,
including representatives from large and small schools, athletic
associations, university associations, student advocacy groups, and
right-to-know advocates, submitted comments on the proposed
regulations. A summary of those comments, and an analysis of changes in
the regulations since the publication of the NPRM, follows.
Substantive issues are discussed under the section of the
regulations to which they pertain. Technical and other minor changes--
and suggested changes the Secretary is not legally authorized to make
under the applicable statutory authority--are not addressed.

General

Comments: One commenter complimented the Department on the clarity
of the proposed regulations and the clarification they brought to the
statute.
One commenter argued that the statute was based on misconceptions
about interest in the kinds of data most institutions would supply and
on general interest in comparing institutions' athletic programs, and
that the Secretary should consider these caveats when determining what
level of cost is justified to provide these data.
One commenter noted that the proposed regulations contain no
specific provisions governing the consequences of non-compliance, and
urged the Department to detail those provisions, including a reference
to the Higher Education Act of 1965, as amended (HEA), if that is the
source of sanctions.
Discussion: The Secretary wishes to emphasize that care was taken,
consistent with the purpose and terms of the statute, to respond to
concerns and minimize the burdens associated with reporting these data.
The Secretary notes that these regulations implement an amendment
to the HEA, and thus form a part of the regulations governing an
institution's participation in the title IV, HEA programs. Institutions
that do not comply with these reporting requirements are subject to the
same penalties applicable to other regulatory violations, namely,
possible fines, limitation, suspension, or termination of participation
in the title IV, HEA programs. The regulations governing these possible
sanctions are located in 34 CFR Part 668, Subpart G.
Changes: None.

Section 668.41 Reporting and Disclosure

Comments: Several commenters proposed that reports be available for
examination at an accessible office during normal business hours. One
commenter suggested that the information should be made available on
request. Another commenter suggested that the information be available
at the institution's library. Still another commenter recommended that
the information be available in all admissions, financial aid, and
intercollegiate athletic offices, as well as available on request.
Several commenters suggested that the information, in addition to being
generally available, also be supplied automatically to students who
have been offered an athletic scholarship and to their parents, just as
the National

[[Page 61426]]
Collegiate Athletic Association (NCAA) now requires schools to disclose
to those parties the institution's retention rate. One commenter
inquired whether the information should be supplied to the Department,
and if so, to whom it should be sent.
Discussion: The Secretary agrees that the statute requires only
that the report be available on request. To allow institutions
flexibility in complying with this statutory requirement, the Secretary
will not regulate where the report be made available. However, the
Secretary believes that the intent of the statute is for institutions
to make the annual reports easily accessible, and adds a regulatory
requirement to that effect. The Secretary believes that an institution
would fulfill this obligation if, for example, it made copies of this
report available in such places as intercollegiate athletic offices,
admissions offices, and libraries. An institution may also fulfill this
obligation by electronic means, for example, by providing a copy to
every student in his or her electronic mailbox.
As noted in the February 3, 1995 Notice of Proposed Rulemaking, 60
FR 6940, institutions are not required to submit this report to the
Secretary. However, the Secretary may request that the report be
provided during a program review or compliance audit, for example, in
order to verify compliance with these regulations.
Changes: Section 668.41(e)(1)(i) has been changed to include a
requirement that institutions make the information contained in this
report easily accessible to students, prospective students, and the
public, and that an institution make the information available in a
timely fashion when requested.
Comments: Several commenters proposed that notice of the report's
availability be published in at least one publication distributed once
a year. One commenter advised that the campus security report model for
giving notice be adopted. Several commenters believed notice should be
published in the institution's catalogue and registration packets, and
one commenter added financial aid and intercollegiate athletic
department publications to that list.
Discussion: The statute simply requires institutions to inform
students of their right to request the information contained in the
report. In order to provide flexibility to institutions and make it
easier for them to meet this requirement, the Secretary will not
regulate the specifics of notification.
The Secretary agrees that an appropriate way to meet this
requirement would be to publish a notice at least once a year in a
widely-distributed institutional publication. The Secretary also agrees
that publishing a notice in an institution's catalogue, registration
materials, or relevant intercollegiate athletic department publications
distributed to all students, distributing a separate notice to all
students, or distributing the report directly to all students would
each be an appropriate step toward meeting this requirement.
Changes: None.
Comments: Several commenters supported allowing institutions to
charge the general public a reasonable fee for copies of the report as
a means of reducing costs to the institution.
Discussion: The Secretary emphasizes that charging such a fee to
students, potential students, parents, or coaches would violate the
intent of the statute. However, upon reviewing the comments and the
statute, the Secretary agrees that the statute does not prohibit
institutions from charging the general public (persons other than those
listed above) a fee to cover copying expenses only.
Changes: None.
Comments: Several commenters supported October 1 as a reasonable
reporting date beyond 1996, for which the statute requires reporting by
October 1. Several other commenters opposed an October 1 reporting
date, arguing that it would be burdensome or impossible for their
institutions to meet this timetable, especially if actual figures
rather than budget figures must be reported, since these institutions'
fiscal years end near October 1. One of these commenters suggested
November 1 as an alternate reporting date beginning in 1997.
Discussion: The Secretary believes it is vital to fulfilling the
intent of the statute that all prospective student athletes have this
information available before they commit themselves to attending an
institution as a student athlete. The Secretary also, however,
appreciates the concerns of those commenters who believe that the
October 1 disclosure date would be difficult to meet if an
institution's fiscal year ends shortly before October 1. The Secretary
believes it is possible to balance those concerns by designating
October 15 as the disclosure date, beginning in 1997. The Secretary
believes that allowing institutions two additional weeks provides
needed flexibility. The Secretary also believes that the October 15
date will allow students adequate time to request this information
before the start of the NCAA early signing period in the first week of
November. Because the purpose of the legislation is to provide student
consumers with timely information, the Secretary does not believe it
justifiable to push the disclosure date past October 15, due to the
early NCAA signing period.
The Secretary notes that the October 1, 1996 reporting date is set
by the statute, and cannot be changed by the Department.
The Secretary reiterates that information derived from an
institution's budget would not necessarily provide the data on actual
expenditures the statute requires. All reported data must be based on
the institution's actual expenditures.
Changes: Section 668.41(e)(2) has been amended to establish October
15 as the annual disclosure date beginning October 15, 1997.

Section 668.48 Report on Athletic Program Participation Rates and
Financial Support Data

Comments: Several commenters questioned the scope of the
regulations. They argued that small institutions, and institutions that
do not award athletic scholarships, or do not derive revenue from
athletic programs, should not be required to report under these
provisions. These commenters in general maintained that applying the
same reporting requirements to these institutions as to large
institutions would be unfair and burdensome, given that large
institutions have more extensive resources at their command and that
making information about these institutions' athletic programs is
purportedly the main reason for the statute.
One commenter stated that his institution did not give
athletically-related student aid, and inquired whether these provisions
applied to such institutions.
Discussion: The statute requires that all co-educational
institutions of higher education that participate in any title IV, HEA
program and have an intercollegiate athletic program prepare this
report. It does not provide for any exemptions to this reporting
requirement.
Changes: None.
Comments: Many commenters favored the development of a common
format for the report to save staff time and to foster the provision of
comparable data to students, but differed as to whether the format
should be optional or mandatory.
Several commenters favored an optional common format, arguing that
a school is the best judge of how to present its information, and that
if a school differed from the norm, using a mandatory form would only
increase cost and burden. Some of these

[[Page 61427]]
commenters favored the development by the Department, institutions, or
athletic associations and conferences of several different optional
formats geared toward specific types of schools (e.g., NCAA Division I
or Division II, junior colleges). One of these commenters also favored
designating schools based on different types of sports sponsorship, and
according to whether schools award athletically-related student aid.
Several commenters favored a single, mandatory format. One of these
commenters argued that such a format would save schools time and
resources. Other commenters supporting such a format urged its adoption
on the grounds that only a single format would ensure the reporting of
comparable data and total compliance with the provisions of Title IX of
the Education Amendments of 1972 (Title IX).
Several commenters reported that some institutions and associations
are now developing standard formats.
Several commenters reported that trials had shown that a report
generated using a standard format would require four to six hours to
complete and thus did not represent an unreasonable burden. Another
commenter stated it was impossible to determine how long on average it
would take to complete a report, since each report will differ with
institutions' circumstances.
Discussion: In the interest of providing flexibility, the Secretary
has decided not to create a mandatory format at this time, but is
making available an acceptable optional form that is included with
these final regulations. Leaving the form's use optional will allow
schools the freedom to design their own format if they prefer. Given
that the regulations and statute require all institutions to provide
the same information regardless of the format used, the Secretary
believes that students and others will be reasonably able to compare
data from various institutions even if different reporting formats are
used. However, if in the future student consumers or others apprise the
Secretary that optional formats are not in practice yielding reasonably
comparable information, the Department will consider proposing a
standard format or other improvements.
The Secretary does not believe that more than one optional form is
necessary. If a reporting item does not apply to a school--for example,
athletically-related student aid in the case of an institution that
does not award athletic scholarships--the institution may simply note
that the item is not applicable, or report zero expenditures.
In order to address other possible concerns, the Secretary has
included in the appended optional form a section schools may use to
provide further information, or explanations and the context for the
data they supply. The Secretary also encourages schools to use this
section of the report to provide other information that may assist
prospective student-athletes in choosing a school.
Changes: None.
Comments: There was much divergence of opinion among commenters on
whether an institution's provision of athletic participation, aid, and
revenue data to an entity such as an athletic conference or athletic
association satisfies the requirements of this statute. Several
commenters strongly endorsed waivers that would allow such a
substitution. These commenters argued that waivers would substantially
reduce burden on schools while fulfilling the intent of the statute.
Several commenters strongly opposed permitting this substitution.
Some opposed the proposed substitution on the grounds that (a)
provisions for waivers are not included in the statute, as they are in
the Student Right-to-Know Act, and therefore Congress did not intend
for waivers to be issued; (b) the methodology of the conference and
association reporting requirements does not generate the same data
required by the statute; and (c) giving control over the collection of
such data to these conferences and associations will result in less
access to the data, less public input into collection methodologies and
formats, less due process with regard to errors, and less access for
research by the higher education community.
Discussion: Upon further review, the Secretary agrees that the
statute does not allow waivers from the statutory reporting
requirements due to the provision of data to an outside entity. The
Secretary will not consider a disclosure to an athletic conference or
association as satisfying the requirements contained in this statute.
If a disclosure to an athletic conference or association contains data
the institution must also report under this statute, it is certainly
permissible for the institution to use that disclosure as the source of
data for the report required by this statute. If that conference or
association disclosure does not contain all of the required data, the
institution must still obtain and report the necessary additional
information.
The Secretary believes that the amount of information provided the
Department during the rulemaking process with regard to the reporting
provisions and the optional form has resulted in regulations and an
optional reporting format that provide guidance sufficient for
institutions and athletic associations to ascertain clearly the
requirements set forth in these regulations. The optional form the
Secretary provides is adapted from a model form submitted by a
commenter. The Secretary also believes that should they wish to do so,
institutions and athletic conferences and associations will be able to
work together to create other reporting formats that will satisfy the
requirements of these regulations.
The Secretary notes here that the reporting requirements under this
statute, and those found in section 487(a)(18) of the HEA and
Sec. 668.14(d)(1), are quite different. The data supplied in the
respective reports are not necessarily comparable, particularly as the
respective statutes define ``operating expenses,'' ``revenues,'' and
``sports'' differently. Therefore, the compilations required under
section 487(a)(18) of the HEA cannot substitute for reports required by
the EADA. The Secretary will consider asking Congress for a statutory
change that will reconcile these different reporting requirements.
Changes: None.
Comments: Several commenters supported reporting data on an
academic year basis. One commenter supported reporting by academic year
as defined by the Student Assistance General Provisions regulations in
34 CFR Part 668. Several other commenters supported the reporting by
academic year as opposed to a calendar year. Several more commenters
supported defining an academic year for these purposes as a twelve-
month period, for example, July 1 through June 30. These commenters
argued that only such a definition would capture the relevant data that
should be reported, including support given athletes during the summer
months, the costs of summer sports camps, and year-round expenditures
on coaches' salaries and facilities.
One commenter urged that a twelve-month definition of academic year
not be used, since no intercollegiate athletic activities occur during
the summer months.
One commenter believed there is no situation in which the academic
year and fiscal year of an institution would be different, and
suggested that an allocation approach be used if it did occur. Another
commenter asserted that such a situation would make reporting by an
academic year impossible because it would mean adding and subtracting
totals from months that did not overlap in the respective definitions
of a ``year.''

[[Page 61428]]
One commenter recommended that schools simply be required to report
consistently on a fixed twelve-month time period. This commenter stated
that forcing institutions to use a standard period would only cause
difficulties without benefit, because schools do have a variety of
fiscal year and academic year definitions. One commenter recommended
that institutions allocate the monthly income statement in which the
academic year ends proportionally in accordance with the number of
academic days in that month which are included in the academic year.
Discussion: In order to prevent confusion regarding the different
uses of ``academic year,'' the Secretary for purposes of this
discussion and this section of the regulations will use the term
``reporting year'' whenever the statute refers to an ``academic year''.
The Secretary disagrees that the definition of an ``academic year''
found in the Student Assistance General Provisions regulations is
adequate for the purposes of this statute. The definition in Sec. 668.2
of those regulations does not necessarily define a set period of
calendar time, and is used primarily in determining the amount of aid a
student may receive.
The Secretary agrees with the commenters who interpreted the
statute to require a twelve-month reporting period, and disagrees with
those who opposed such an interpretation. The Secretary notes that some
programs do make expenditures on athletics during the summer months,
and these must be reported to ensure the complete reporting of data the
statute requires. Those schools that only make expenditures during nine
months of the year and make no expenditures during the summer will not
face increased burden, as they simply will have no additional expenses
to report.
The Secretary agrees with the commenter who argued that, because
institutions base their academic years on different periods of time,
institutions should not be required to use a single, standard twelve-
month period of time. The Secretary agrees that institutions should
make an effort to ensure that they use a consistent time period from
year to year. The Secretary also notes that whatever the time
designated as the reporting year, the Secretary expects institutions to
disclose on each annual report the exact time period covered by each
report. The Secretary has supplied a space on the optional form for
institutions to supply this information.
Thus, the Secretary interprets the statute to allow, for these
purposes only, each institution to designate a period of calendar time
as its reporting year, so long as the period of time so designated is
twelve consecutive months in length. As noted above, the Secretary
believes this specification of ``year'' as a twelve-month period is
necessary to fulfill the statute's intent that institutions report all
specified information regarding expenditures on athletics throughout
the year.
The Secretary will deem it reasonable for an institution to
designate its fiscal year as its reporting year for these purposes, so
long as the fiscal year is twelve months in length.
Changes: A new section 668.48(b), Definitions, has been added; a
new Sec. 668.48(b)(4) is added to clarify the relevant definition of a
reporting year for purposes of this section only.
Comments: Several commenters supported using the definition of an
undergraduate student contained in the Student Assistance General
Provisions regulations. One commenter urged that either a Departmental
definition or the NCAA definition be adopted. One commenter urged the
adoption of the definition of an undergraduate as ``a student who has
not received a degree from that or any other institution.'' One
commenter supported defining an undergraduate student as someone
enrolled in a baccalaureate degree-seeking program as defined by the
regulations of the certifying institution. This commenter argued that
such a definition is superior to that found in the program regulations,
in that it defers to the institution, and is flexible, specific and
clear. One commenter argued that the term is already defined in the
education community and hence no clarification is needed.
One commenter questioned the need to collect enrollment information
for numbers of male and female undergraduate students for the entire
academic year, and instead urged the use of the Integrated
Postsecondary Education Data Systems (IPEDS) Fall Enrollment Survey to
collect this information.
Discussion: Upon further review, the Secretary agrees, for the
purposes of these provisions only, that the term ``undergraduate
student'' is sufficiently well-understood in the higher-education
community. The Secretary will allow each institution to use its
customary definition of an undergraduate student as the basis for
reporting the data required by the statute. The Secretary believes that
allowing each institution to report numbers of undergraduate students
on the basis of its customary definition will satisfy these reporting
requirements, and that for the Department to provide a special
definition that might oblige an institution to recount students on the
basis of a definition different from the one it ordinarily employs
would be needlessly burdensome. The Secretary does, however, expect
institutions to provide a definition of undergraduate student if that
definition is not found elsewhere in the institution's catalog or other
similar publications.
The Secretary also stresses that for all other regulations
governing title IV, HEA programs, the relevant definition of
undergraduate student continues to apply according to its terms.
Changes: A new section 668.48(b)(5)is added that clarifies the
definition of undergraduate student for purposes of this section only.
Comments: One commenter agreed that the term ``intercollegiate
athletic program'' should include only varsity teams, not intramural
teams.
Discussion: The Secretary appreciates the commenter's support for
this interpretation.
Changes: None.
Comments: One commenter suggested that the defining element in
designating a team as a varsity team be that it is funded through the
university's department of athletics. This commenter argued that
general institutional support does not necessarily indicate varsity
status. One commenter argued that the level of financial support not be
a factor in determining varsity status; rather, membership in an
athletic association should be the determining factor. One commenter
argued that both the type and level of financial support be taken into
account. This would help prevent institutions from calling a club team
an ``unfunded varsity team.'' One commenter believed that a varsity
team be designated by its participation in a sport that has an NCAA
championship or is an NCAA emerging sport, or by a set number of
intercollegiate contests each season, either set absolutely, or
preferably by the institution's sports governance group, or some
combination of these factors.
Discussion: Upon further review, the Secretary disagrees with the
commenters who urged that a varsity team be defined by its receipt of
funds through an athletic department, or by the type and level of
funding it receives. The Secretary believes these definitions are too
narrow in scope for the purposes of the statute. Such definitions would
not include acknowledged varsity teams that receive funds from an
institution that does not have an athletics department, acknowledged
varsity teams that are funded from non-institutional sources, or
unfunded teams that play a predominantly

[[Page 61429]]
intercollegiate schedule against other varsity teams.
The Secretary agrees that a team's membership in an athletic
conference, or its participation in a schedule made up primarily of
intercollegiate contests against varsity teams, is a mark of varsity
status. However, the Secretary believes that, because it would exclude
independent programs, defining varsity status by membership in an
athletic conference alone is too limited a definition. The Secretary
also believes it would not be productive to set a specific number of
annual intercollegiate contests as a defining criterion.
The Secretary therefore defines the term ``varsity team'' as used
in the statute to mean a team that is either: (a) designated or defined
by its institution or an athletic association as a varsity team, or (b)
a team that primarily competes against other teams that are designated
or defined as varsity teams.
The Secretary notes that this interpretation is not meant to
include as ``varsity teams'' those club teams that annually play a
small number of games, or compete in a small number of matches or
meets, against varsity teams.
Changes: A new Sec. 668.48(b)(6) is added that clarifies the
definition of varsity team.
Comments: One commenter supported counting all varsity participants
on a varsity team as participants. One commenter urged that two totals
of varsity participants be listed, one including, and one excluding,
``redshirted'' athletes (those athletes who do not play in varsity
games in order to preserve their eligibility for a future season). The
commenter based this recommendation on the finding in the statute that
there is concern about athletic opportunities among different groups of
athletes, including redshirts.
Many commenters argued that all players who receive athletically-
related aid should be counted as participants. Some of these commenters
argued that this included everyone who practices with a varsity team
and receives coaching, and thus includes redshirts. Some of the
commenters who supported this definition construed it to cover only
varsity and junior varsity players. Others argued that such a
definition included members of freshmen and junior varsity teams as
well as redshirts. One of these commenters thought such a definition
should include all student-athletes, whether or not they are eligible
or competing at the time. Another of these commenters supported this
definition and the inclusion of redshirts as participants on the
grounds that it coincides with provisions in Title IX regulations.
One commenter believed that the term ``varsity participant'' should
include everyone who participates as of the first day of practice. One
commenter supported the inclusion of redshirts, but not the inclusion
of athletes on medical waivers, as this is consistent with NCAA
procedures. One commenter supported the inclusion of athletes who are
injured and unable to compete, as this is consistent with NCAA
procedures.
One commenter cautioned that counting varsity participants would
include counting more than undergraduates, since previous redshirts
might be participating and on scholarship as graduate students under
their remaining eligibility. This commenter suggested that
Congressional intent be the determining factor in deciding whether to
count these students as participants.
Discussion: From the breadth and variety of comments received in
this area, the Secretary is concerned that institutions may take an
unnecessarily and improperly restrictive view of who is a participant
in order to avoid full disclosure. The Secretary recognizes that the
term ``participants'' may be open to varied interpretations, and
therefore emphasizes that the statute requires institutions to include
in the category of participants all members listed on the roster of
varsity teams. Institutions may not, for example, apply this term only
to those athletes who actually take part in any one contest.
The Secretary agrees that students who receive athletically-related
aid should be counted as varsity participants, because they receive
financial benefits by reason of their association as athletes with an
intercollegiate athletic program. The Secretary, however, does not
agree that this should be the sole criterion for designation as a
participant, since this would exclude team members not on scholarship
(``walk-ons'') and all team members in institutions that do not give
athletically-related student aid. The Secretary also agrees that an
athlete who practices with the varsity team and receives coaching from
varsity coaches as of the day of the first scheduled contest of the
designated reporting year should be counted as a participant.
The Secretary agrees that it is reasonable to include redshirts in
the count of participants, because these student-athletes may receive
athletically-related financial aid, or the benefits of varsity team
coaching, or both. Junior varsity team and freshman team players must
be included if they are part of the overall varsity program. The
Secretary also believes this count must include student-athletes who
are injured and still receive scholarship assistance (since they are
receiving a substantial financial benefit) as well as fifth-year team
members who have already received a bachelor's degree (because they may
receive athletically-related financial aid or the benefits of
coaching).
Therefore the Secretary interprets the statute as requiring an
institution to count all varsity team members as participants, and
believes that a reasonable count of participants would also cover all
students who receive athletically-related student aid, in addition to
students who practice with the varsity team and receive coaching as of
the day of the first scheduled intercollegiate contest of the
designated reporting year.
Changes: A supplementary note providing a discussion of the term
participant has been added to the regulations.
Comments: Several commenters supported the definition of operating
expenses as stated, and thought no further regulatory guidance was
necessary. One commenter argued for a comprehensive categorization,
which would include, for example, travel expenses for coaches' spouses,
medical trainers and alumni and alumnae. This commenter also urged that
the source of funds used for expenses should have no bearing on the
reporting of team-related expenses. One commenter maintained that no
one definition should be codified, as there are thousands of different
accounting procedures in use by institutions. One commenter urged that
a three-year averaging method be used, in order to take into account
year-to-year variations in expenditures on such items as uniforms and
travel. One commenter recommended that appearance guarantees paid to
visiting teams and expenses related to post-season contests not be
included. One commenter strongly urged that institutions be required to
report expenses for home as well as away contests. One commenter
recommended that costs of videotaping and videotape personnel be
included, as well as capital expenses exceeding one year. One commenter
believed that reporting expenses by team would be misleading, since the
required sizes of the teams and the nature of the sports would differ
and greatly affect expenses.
Discussion: While understanding the concerns of those commenters
who argued for a more comprehensive categorization of operating
expenses, the Secretary notes that the statute includes

[[Page 61430]]
a specific definition of the categories of expenses that must be
reported. However, the Secretary does wish to emphasize several points
with regard to that definition. All items within the categories listed
in the statute--lodging, meals, transportation, officials, uniforms,
and equipment--must be included in the report. Expenses in these
categories related to both home and away contests must be included in
the report. Any travel expenses related to intercollegiate athletics
paid for by the institution must be included in the report.
Because the statute explicitly defines the kinds of expenses to be
captured in this section of the report as operating expenses, the
Secretary disagrees with the commenters who maintain that these items
must include capital expenses. The inclusion of such items as videotape
equipment will depend on whether those items are accounted for by the
institution as operating expenses or capital expenses. The Secretary
agrees that for reasons of comparability between men's and women's
teams and among institutions, items not specifically enumerated in the
statute, such as appearance fees or guarantees paid to visiting teams,
should not be included in the report.
The Secretary agrees that the original source of the funds used to
pay operating expenses (for example, fund-raising organizations) should
not exempt the institution from reporting those expenses. If the funds
are expended by the institution for one of the purposes listed in the
statute, the expenses must be reported.
The Secretary disagrees with the commenter who urged that
institutions be allowed or required to report expenses averaged over
several years, and also disagrees with the commenter who maintained
that institutions be allowed not to report post-season expenses. The
statute requires an institution to report for each reporting year, and
separately for each team, its expenditures on all specified operating
expenses. If an institution wishes to provide further information on
these matters, such as multi-year data, or explanations of significant
year-to-year variations in expenses, it may do so (e.g., in a ``further
information'' section of its form or report).
In this regard the Secretary wishes to point out that while an
institution is required to list all teams meeting the definition found
in Sec. 668.48(b)(6) as varsity teams regardless of the institution's
level of funding for them, the Secretary interprets the statute to
require institutions to report only institutional expenditures. An
institution shall report expenses for unfunded or non-institutionally-
funded varsity teams as zero. For teams an institution only partially
funds, the institution shall report as zero those expenses it does not
fund.
The Secretary also notes that the statute and these regulations
allow institutions to report operating expenses on a per capita basis
for each team, and to report combined expenditures attributable to
closely-related teams, such as track and field, or swimming and diving.
Changes: None.
Comments: Several commenters supported requiring the proration of
expenses for co-educational teams based on the proportion of males to
females on such teams. Several commenters supported only prorating ``in
a reasonable manner,'' arguing that prorating on the basis of male-
female ratios would involve, for example, calculations for each trip
taken, and thus would constitute an unwarranted burden on institutions.
One of these commenters also believed that these calculations would
provide a false precision, as different accounting practices would lead
to large discrepancies. Several commenters recommended that expenses
for co-educational teams instead be listed as a separate category in
order to reduce burdensome calculations.
Discussion: In the interest of reducing burden, and because the
EADA does not specifically address the reporting requirements for co-
educational teams, the Secretary will allow, but not require,
institutions to report the expenses of co-educational teams in a
separate category without proration.
However, the Secretary emphasizes that these expenses, in whatever
form they are categorized, are to be reported in an unduplicated
manner. An institution that prorates co-educational team expenses
between men's and women's teams would not report those same expenses
under a co-educational team category. Similarly, an institution that
lists co-educational team expenses in a co-educational team category
would not add a prorated portion of those same expenses to the figures
they report for men's and women's teams.
Changes: None.
Comments: One commenter urged that a consistent definition of
``full-time'' coach be promulgated in the interest of consistent
reporting. Because few coaches coach twelve months a year, this
commenter recommended that the Department define a ``full-time'' coach
as someone employed full-time nine months a year, with eighty percent
of his or her job responsibilities being related to coaching the
particular sport. One commenter recommended that volunteer coaches not
be counted, as there is no cost factor involved. One commenter
questioned the efficacy of counting assistants and interns, as the
required number will vary from sport to sport. This commenter also
questioned the relevance of this requirement to the intent of the
statute.
Discussion: The Secretary does not agree with the commenter who
urged that a definition of ``full-time'' be set by the Department. The
Secretary allows institutions to make their own determination of
``full-time'' and ``part-time'', so long as those designations are
credible and reasonable. In the interest of accurate and clear
reporting the Secretary expects institutions to explain what they mean
by those terms, and also expects them to employ the terms consistently.
The optional form provides a space for institutions to supply this
information.
The Secretary disagrees with the commenters who argued that
volunteers, assistants and interns not be counted. While it is true
that there is no cost factor associated with volunteers, the statute
aims to disclose not only monetary resources expended on student-
athletes, but also time and attention spent in instructing student-
athletes. Similarly, while the number of assistants and interns needed
will depend on the nature of the sport, the statute requires that the
number of those coaches be disclosed.
Changes: None.
Comments: One commenter recommended that the definition of
athletically-related student aid be defined as ``all unearned,
nonrepayable financial aid awarded and administered by the
institution's department of athletics (or upon recommendation of the
department of athletics) and based on athletic ability (e.g., athletic
scholarship). Such aid would include any tuition waiver or room waiver
(state or institutional waivers) administered at the institution's
discretion based on the student-athlete's athletic ability.'' This
commenter argued that such a definition is superior to that found in
the HEA, as it is clearer and broader. Several commenters urged that if
the aid is made through the athletics department, it should be counted.
One commenter argued that all grants to current or former athletes be
counted. One commenter agreed that such aid should be defined as it has
been in other regulations.
Discussion: The Secretary, while recognizing the merit of the
definitions offered by the commenters, concludes that they are neither
clearer nor more

[[Page 61431]]
comprehensive than that already provided in section 485(e)(8) of the
HEA. Therefore, in the interest of consistency, the Secretary will
retain that definition for these purposes.
Changes: A new Sec. 668.48(b)(1) is added to clarify the definition
of athletically-related student aid incorporating the language of
section 485(e)(8) of the HEA.
Comments: One commenter agreed that the statute requires that
separate reports of athletically-related student aid be made for male
and female teams overall.
Discussion: The Secretary appreciates the commenter's support for
this interpretation of the statute.
Changes: None.
Comments: Several commenters supported the inclusion of
scholarships for students on medical waivers in the report of
athletically-related student aid. Several supported the inclusion of
these scholarships if they are still awarded through the athletics
department. One commenter opposed the inclusion of these scholarships,
on the grounds that the character of the aid changes once the student
ceases to be a participant on a team.
Discussion: The Secretary agrees with those commenters who
interpret the statute to include these scholarships as part of
athletically-related student aid. The Secretary believes these
scholarships continue to retain the character of ``athletically-
related'' assistance.
Changes: None.
Comments: Several commenters strongly urged that a definition of
recruiting expenses be promulgated, arguing that a standard definition
is essential to ensuring comparability and to revealing the true
commitment of an institution to gender equity. Some of these commenters
maintained that such a definition should include a wide scope of
expenses, including expenses for literature and videotapes, telephone
and travel, campus visitations, and other expenses related to the
purpose of persuading a recruit to attend the institution. One of these
commenters also argued that the number of letters of intent offered and
the terms of these letters be disclosed. One commenter recommended that
the value of ``trade-outs'' (goods and services provided by businesses
in exchange for advertising or other services provided by the
institution) used for recruiting purposes be reported, since often a
disproportionate number of these go to men's teams, which artificially
lowers their overall official expenses. One commenter believed that a
definition of recruiting expenses, possibly based on NCAA-allowed
recruiting practices, would be useful.
Several institutions stated that their recruiting expenses were
negligible, and that these reporting requirements would be unduly
burdensome. They argued that in some cases the cost of reporting
expenditures on recruiting would exceed those expenditures. One of
these commenters urged that these requirements be limited to the larger
programs. One commenter disclosed that his institution does not track
recruiting expenditures, those expenditures being incurred for the most
part in the form of telephone calls and letters. One commenter stated
that such expenditures will depend on the sport, and thus are not
comparable across sports. This commenter also questioned the relevance
of this requirement to the intent of the statute.
Discussion: The statute requires institutions to report all
expenses they incur for recruiting. The Secretary defines these
expenses to include, but does not limit them to, the following items:
expenditures for transportation, lodging, and meals for both recruits
and institutional personnel engaged in recruiting; all expenditures for
on-site visits; and all other related expenses, such as those incurred
for printing recruiting materials, creating recruiting videos, and mass
mailings. The Secretary believes that these and all other expenses
logically related to recruiting activities must be reported. In the
interest of clear and accurate reporting, the Secretary expects
institutions to provide an explanation of how they derived the data on
recruiting expenses they report and to disclose the list of expenses on
which they base the figures they report as recruiting expenses. The
optional form provides a space for institutions to provide this
information.
The Secretary agrees that, to balance burden appropriately with the
statutory requirement to collect data, institutions need not, for
example, trace every telephone call or every postage stamp. The
Secretary will allow schools to make a reasonable estimate of actual
expenses for such items as telephone usage and postage if those
expenses cannot readily be separated from telephone and postage charges
incurred for other purposes.
The Secretary also believes that an accurate accounting of
recruiting expenses would include an estimate of the value of trade-
outs used in the respective recruiting of male and female athletes.
Changes: A new section 668.48(b)(4) has been added to clarify the
definition of recruiting expenses for purposes of this section only.
Comments: Several commenters recommended the Secretary use the
definition of ``total annual revenues'' in Sec. 668.14 of the Student
Assistance General Provisions regulations. One commenter recommended
that fund-raising dollars be included in the determination of male and
female athletic revenues.
Discussion: The Secretary agrees with the commenters that
institutions must use the definition of total revenues found in
Sec. 668.14(e)(1)-(2), and interprets this definition to include
revenues derived from fund-raising activities.
Changes: None.
Comments: One commenter urged that all types of compensation,
including bonuses and benefits, be included in the calculation of a
coach's salary. Several commenters supported the use of W-2 forms for
purposes of salary calculation. One of these commenters noted that this
method would capture all benefits without the necessity of doing
additional calculations. One commenter urged that years of experience
be listed along with salaries, because this is (or should be) an
important component in the awarding of salary. This commenter also
questioned the relevance of this requirement to the intent of the
statute.
One commenter urged that income derived from shoe and television
contracts be included in the calculation of a coach's salary. This
commenter noted that this is important because these contracts are a
factor in the large discrepancies existing between male and female
coaches' salaries at NCAA Division I and II institutions. One commenter
recommended that shoe and television contracts not be included in
salary calculations, since these are revenue sources that are not
derived from the institution or institutional property, but that
revenue from summer sports camps held at the institution be included.
One commenter recommended that NCAA categories be used in the
calculation of salaries, and that these should include funds provided
by booster organizations.
Discussion: In requiring the disclosure of ``institutional
salary,'' the Secretary interprets the statute as obligating
institutions to report all wages and bonuses the institution pays a
coach as compensation attributable to coaching. To meet these reporting
requirements, an institution may base its report on a coach's W-2 form,
so long as that document contains information conforming to the
Secretary's

[[Page 61432]]
interpretation of the statute. However, the Secretary notes that these
forms may contain information that is not required by the statute.
Whether an institution must report as part of institutional salary
such payments as those associated with sports camps, television shows,
and shoe contracts will depend on the role the institution plays in the
provision of those payments. Such payments must be disclosed if they
form part of the coach's institutional compensation for coaching.
The Secretary agrees with the commenter who maintained that years
of experience is useful information relevant to salaries, but notes
that the statute does not require that this information be reported.
Institutions may include this information separately on their form in a
section for additional information.
Changes: A new section 668.48(b)(2) has been added that clarifies
the definition of institutional salary for purposes of this section
only.
Comments: Several commenters favored only listing the number of
volunteer coaches, and not assigning their salaries as zero for
averaging purposes. These commenters argued that to assign these
salaries as zero would distort the salary averages for that particular
sport. One of these commenters argued that such a practice would seem
to understate funding for men's sports, since they traditionally have
many volunteer coaches. One commenter supported reporting salaries of
such coaches as zero, provided that the number of such coaches per
sport is included in the report. Several commenters recommended that a
salary of zero should be used for calculating average salaries, since
this most accurately reflects the comparative expenditures for men's
and women's teams.
Some commenters also expressed concern that, due to the small
number of such teams, privacy issues might arise in reporting the
salaries of coaches who coach co-educational teams.
Discussion: The Secretary recognizes that averaging in volunteer
coaches with zero salaries may result in averages that are not readily
comparable across men's and women's teams, depending on the number of
volunteers utilized by those teams. Men's teams with large numbers of
volunteers may appear to pay lower salaries than is actually the case.
Since averaging in zero salaries will distort the average for salaries
actually paid, the Secretary is changing the position taken in the
NPRM. The Secretary believes that the average of actual salaries is
more useful for comparison than an average diluted with zero salaries.
Further, the EADA specifically directed that volunteers be included in
the counts of head coaches and assistant coaches institutions must
report, but did not direct that volunteers be included in the salary
calculation. Thus, the Secretary interprets the statute to require that
volunteer coaches be excluded from the calculation of average salaries.
As noted in the discussion of operating expenses, the Secretary
interprets the statute to require that the salaries of coaches paid by
entities other than the institution be excluded from this calculation
as well. In the interest of clarity and ease of comparison, the
Secretary expects institutions to report the number of salaried coaches
that are included in the calculation of average salary, and has
provided a place on the optional form where this information may be
reported.
With respect to the privacy concerns expressed above that may arise
in the case of small numbers of coaches coaching co-educational teams,
the Secretary notes that institutions are not required to report
separately average salaries for co-educational teams. Institutions may
report the appropriate pro-rated portion of those salaries as part of
the averages of institutional salaries of coaches of men's and women's
teams.
Changes: None.
Comments: One commenter supported the Secretary's interpretation
that the requirement to report coaches' salaries in the aggregate
requires institutions to report a single average for all men's sports
in the aggregate and a single average for all women's sports in the
aggregate. One commenter recommended that these aggregate averages be
broken down into categories of full-time and part-time coaches, so that
accurate comparisons may be made between the men's and women's
programs.
One commenter recommended that when a coach instructs both male and
female teams, a proration be calculated based on the time spent with
each team. One commenter argued that when closely-related male and
female teams share coaches and practice time, a proration of expenses
and salaries should be made. One commenter noted that her institution's
male and female track and cross country teams work out together and
have the same coach; consequently, the institution has a combined
budget for these men's and women's teams that cannot be separated by
gender. One commenter noted that all of her institution's coaches coach
more than one sport, so that full-time coaches for two different sports
would not represent two different people.
One commenter agreed with the Department that a faculty member who
also coaches should have his or her salary reasonably attributed to
both activities. One commenter maintained that it would be difficult to
separate out the costs associated with a faculty member who also
coaches. One commenter noted that all of her institution's coaches
coach a sport as part of their teaching load, and that this
differentiates this institution from many others, thus meriting special
consideration.
Discussion: The Secretary does not interpret the statute as
requiring institutions to break down these averages into full-time and
part-time categories. If an institution wishes to explain differences
in average salaries by referencing the number of part-time and full-
time coaches it employs, it may provide that explanation in a section
for additional information on its form.
The Secretary notes that there are two different instances where a
coach instructs both male and female athletes, and these are covered by
different requirements. For coaches who coach both a men's team and a
women's team, the statute specifies that an institution must divide the
salary of the coach by the number of teams coached, then allocate the
salary among the teams on the basis of the coach's responsibilities for
the different teams. For coaches who coach a co-educational team or
teams, the institution may allocate the salary of the coach as above,
or report the average salaries as part of a separate category. As noted
above, the Secretary also expects institutions to provide an
explanation of what they mean by the term ``full-time,'' particularly
when an institution employs a coach who acts as a ``full-time'' coach
for more than one team.
The Secretary agrees with the commenter who maintained that for a
faculty member who also coaches, the portion of his or her salary
attributed to coaching activities should be included in the calculation
of average salary. In cases where coaching is added to other teaching
responsibilities for additional compensation, the additional amount
should be readily available. If coaching is part of the regular
workload of a faculty member and the institution does not differentiate
the compensation paid for teaching from compensation paid for coaching,
the institution must make a reasonable effort to attribute an
appropriate portion of the salary for coaching.
Changes: None.

[[Page 61433]]


Executive Order 12866

These final regulations have been reviewed in accordance with
Executive Order 12866. Under the terms of the order the Secretary has
assessed the potential costs and benefits of this regulatory action.
The potential costs associated with the final regulations are those
resulting from statutory requirements and those determined by the
Secretary to be necessary for administering this program effectively
and efficiently. Burdens specifically associated with information
collection requirements were identified and explained elsewhere in this
preamble under the heading Paperwork Reduction Act of 1995.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these regulations, the Secretary has determined
that the benefits of the regulations justify the costs.
The Secretary has also determined that this regulatory action does
not unduly interfere with State, local, and tribal government in the
exercise of their governmental functions.

Summary of Potential Costs and Benefits

The potential costs and benefits of these final regulations are
discussed elsewhere in this preamble under the following heading:
Analysis of Comments and Changes.

Paperwork Reduction Act of 1995

Sections 668.41 and 668.48 contain information collection
requirements.
Collection of information: Student Assistance General Provisions--
Section 668.41--Reporting and disclosure of information--Co-
educational institutions that have intercollegiate athletic programs
must make available the information described in section 668.48 to
students, prospective students, and the public upon request.
Section 668.48--Report on athletic program participation rates and
financial support data--Co-educational institutions that have
intercollegiate athletic programs are required to gather information on
program participation rates and financial support data for purposes of
consumer information. The information to be collected includes:
information on participation rates of male and female athletes;
information on the number of men's and women's varsity teams;
information on athletically-related student aid awarded male and female
athletes; and various types of information regarding the financial
support of men's and women's athletic teams, including revenues,
operating expenses, recruiting expenses, the number of coaches, and
coaches' salaries.
Institutions are to collect this information annually. An estimate
of the total annual reporting and recordkeeping burden that will result
from the collection of the information is 5.5 hours per response for
1,800 respondents, including time for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection of information. The total
annual recordkeeping and reporting burden equals 9,900 hours.
The Department considers comments by the public on these proposed
collections of information in--
<bullet> Evaluating whether the proposed collections of information
are necessary for the proper performance of the functions of the
Department, including whether the information will have a practical
use;
<bullet> Evaluating the accuracy of the Department's estimate of
the burden of the proposed collections of information, including the
validity of the methodology and assumptions used;
<bullet> Enhancing the quality, usefulness, and clarity of the
information to be collected; and
<bullet> Minimizing the burden of collection of information on
those who are to respond, including through 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.
The Department requests comments concerning the collection of
information contained in these final regulations by January 29, 1996.
Organizations and individuals desiring to submit comments on the
information collection requirements should direct them to Patrick
Sherrill, U.S. Department of Education, 600 Independence Avenue, S.W.,
Room 5624, ROB-3, Washington, D.C. 20202.

Assessment of Educational Impact

In the Notice of Proposed Rulemaking, the Secretary requested
comments on whether the proposed regulations would require transmission
of information that is being gathered by or is available from any other
agency of the United States.
Based on the response to the proposed rules and on its own review,
the Department has determined that the regulations in this document do
not require transmission of information that is being gathered by or is
available from any other agency or authority of the United States.

List of Subjects in 34 CFR Part 668

Administrative practice and procedure, Colleges and universities,
Consumer protection, Education, Grant programs--education, Loan
programs--education, Reporting and recordkeeping requirements, Student
aid.

(Catalog of Federal Domestic Assistance Numbers: 84.007 Federal
Supplemental Educational Opportunity Grant Program; 84.032 Federal
Stafford Loan Program; 84.032 Federal PLUS Program; 84.032 Federal
Supplemental Loans for Students Program; 84.032 Federal
Consolidation Program; 84.033 Federal Work-Study Program; 84.038
Federal Perkins Program; 84.063 Federal Pell Grant Program; 84.069
State Student Incentive Grant Program; 84.268 Direct Loan Program;
and 84.272 National Early Intervention Scholarship and Partnership
Program.)

Dated: November 22, 1995.
Richard W. Riley,
Secretary of Education.

The Secretary amends Part 668 of Title 34 of the Code of Federal
Regulations as follows:

PART 668--STUDENT ASSISTANCE GENERAL PROVISIONS

1. The authority citation for Part 668 is revised to read as
follows:

Authority: 20 U.S.C. 1085, 1088, 1091, 1092, 1094, 1099c, and
1141, unless otherwise noted.

2. Section 668.41 is amended by revising the heading, reserving
paragraphs (c) and (d), adding a new paragraph (e), and revising the
authority citation to read as follows:


Sec. 668.41 Reporting and disclosure of information.

* * * * *
(e)(1)(i) An institution of higher education subject to Sec. 668.48
shall make available to students, prospective students, and the public
upon request the information contained in the report described in
Sec. 668.48(c). The institution shall make the information easily
accessible to students, prospective students, and the public and shall
provide the information promptly to anyone who requests the
information.
(ii) The institution shall inform all students and prospective
students of their right to request that information.
(2) Each institution shall make available its first report under
Sec. 668.48 not later than October 1, 1996, and make available each
subsequent report no later than October 15 each year thereafter.


[[Page 61434]]

(Authority: 20 U.S.C. 1092(g)(3) and (5))

3. A new section 668.48 is added to subpart D to read as follows:


Sec. 668.48 Report on athletic program participation rates and
financial support data.

(a) Applicability. This section applies to each co-educational
institution of higher education that--
(1) Participates in any title IV, HEA program; and
(2) Has an intercollegiate athletic program.
(b) Definitions. The following definitions apply for purposes of
this section only.
(1) Athletically-related student aid means any scholarship, grant,
or other form of financial assistance, the terms of which require the
recipient to participate in a program of intercollegiate athletics at
an institution of higher education in order to be eligible to receive
that assistance.
(2) Institutional salary means all wages and bonuses an institution
pays a coach as compensation attributable to coaching.
(3) Recruiting expenses means all expenses institutions incur for
recruiting activities, including but not limited to expenditures for
transportation, lodging, and meals for both recruits and institutional
personnel engaged in recruiting, all expenditures for on-site visits,
and all other expenses related to recruiting.
(4) Reporting year means a consecutive twelve-month period of time
designated by the institution for the purposes of this section.
(5) Undergraduate students means students who are consistently
designated as such by the institution.
(6) Varsity team means a team that--
(i) Is designated or defined by its institution or an athletic
association as a varsity team; or
(ii) Primarily competes against other teams that are designated or
defined as varsity teams.
(c) Report. An institution subject to this section shall annually,
for the immediately preceding reporting year, prepare a report that
contains the following information regarding intercollegiate athletics:
(1) The number of male and female full-time undergraduate students
that attended the institution.
(2) A listing of the varsity teams that competed in intercollegiate
athletic competition and for each team the following data:
(i) The total number of participants, by team, as of the day of the
first scheduled contest of the reporting year for the team.
(ii) Total operating expenses attributable to those teams. For the
purposes of this section, the term ``operating expenses'' means
expenditures on lodging and meals, transportation, officials, uniforms
and equipment. An institution--
(A) Also may report those expenses on a per capita basis for each
team; and
(B) May report combined expenditures attributable to closely-
related teams--such as track and field or swimming and diving. Those
combinations must be reported separately for men's and women's teams.
(iii)(A) Whether the head coach was male or female and whether the
head coach was assigned to that team on a full-time or part-time basis.
(B) The institution shall consider graduate assistants and
volunteers who served as head coaches to be head coaches for the
purposes of this report.
(iv)(A) The number of assistant coaches who were male and the
number of assistant coaches who were female for each team and whether a
particular coach was assigned to that team on a full-time or part-time
basis.
(B) The institution shall consider graduate assistants and
volunteers who served as assistant coaches to be assistant coaches for
purposes of this report.
(3) The total amount of money spent on athletically-related student
aid, including the value of waivers of educational expenses,
aggregately for men's teams, and aggregately for women's teams.
(4) The ratio of-(i) Athletically-related student aid awarded male
athletes; and
(ii) Athletically-related student aid awarded female athletes.
(5) The total amount of expenditures on recruiting aggregately for
all men's teams, and aggregately for all women's teams.
(6) The total annual revenues generated across all men's teams, and
the total annual revenues generated across all women's teams. An
institution may also report those revenues by individual team.
(7)(i) The average annual institutional salary of the head coaches
of all men's teams, across all offered sports, and the average annual
institutional salary of the head coaches of all women's teams, across
all offered sports.
(ii) If a head coach had responsibilities for more than one team
and the institution does not allocate that coach's salary by team, the
institution shall divide the salary by the number of teams for which
the coach had responsibility and allocate the salary among the teams on
a basis consistent with the coach's responsibilities for the different
teams.
(8) The average annual institutional salary of the assistant
coaches of men's teams, across all offered sports, and the average
annual institutional salary of the assistant coaches of women's teams,
across all offered sports.

Note to paragraph (e): The Secretary interprets the statute to
require an institution to count all varsity team members as
participants, and not merely those athletes who take part in a
scheduled contest. ``Participants'' include all students who
practice with the varsity team and receive coaching as of the day of
the first scheduled intercollegiate contest of the designated
reporting year, including junior varsity team and freshman team
players if they are part of the overall varsity program. The
Secretary believes that a reasonable count of participants would
also cover all students who receive athletically-related student
aid, including redshirts, injured student athletes, and fifth-year
team members who have already received a bachelor's degree.

(Authority: 20 U.S.C. 1092(g)(1), (2) and (4))

Appendix

Note: The following appendix will not appear in the Code of
Federal Regulations.

BILLING CODE 4000-01-P


[[This file contains the charts on page(s) 61435 to 61442 in Portable Document Format (PDF). It can be viewed with version 3.0 or greater of the free Adobe
Acrobat Reader software.]]

[FR Doc. 95-28968 Filed 11-28-95; 8:45 am]
BILLING CODE 4000-01-C



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Last Modified: 06/28/1998