[Federal Register Volume 60, Number 229 (Wednesday, November 29, 1995)]
[Rules and Regulations]
[Pages 61424-61442]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28968]




[[Page 61423]]

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Part V





Department of Education





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34 CFR Part 668



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Student Assistance General Provisions; Final Rule

  Federal Register / Vol. 60, No. 229 / Wednesday, November 29, 1995 / 
Rules and Regulations   

[[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--
     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.


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(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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