Student Assistance General Provisions

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--

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;

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;

Enhancing the quality, usefulness, and clarity of the

information to be collected; and

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.

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[FR Doc. 95-28968 Filed 11-28-95; 8:45 am]

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