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Team III – Accreditation – Amendatory Language for Proposed Regulations as Negotiated

At the request of several accrediting agencies, we are posting below the amendatory language for 

proposed regulations as negotiated in the recent negotiated rulemaking. Amendatory language 

from the negotiated rulemaking session will be published as proposed rules in the Federal 

Register but that has not yet been done. The Federal Register will contain the official version of 

the proposed rules and may differ in some respects from the amendatory language posted below. 

Furthermore, the proposed rules, when published in the Federal Register, will not be final, and 

will be subject to additional change, in response to written comments received during the 

comment period and otherwise. The Department plans to publish final rules in the Federal 

Register before November 1, 2009. The final rules, however, will not be effective until July 1, 

2010, except at the option of recognized accrediting agencies. The provisions regarding 

recognition contained in the Higher Education Opportunity Act, P.L. 110-315, 122 Stat. 3078, on 

which many of the proposed regulations are based, have been effective since their enactment on 

August 14, 2008.

For the reasons discussed in the preamble, the Secretary 

proposes to amend parts 600 and 602 of title 34 of the Code of 

Federal Regulations as follows:

PART 600--INSTITUTIONAL ELIGIBILITY UNDER THE HIGHER EDUCATION 

ACT OF 1965, AS AMENDED.

1. The authority citation for part 600 continues to read 

as follows:

AUTHORITY: 20 U.S.C. 1001, 1002, 1003, 1088, 1091, 1094, 

1099b, and 1099c, unless otherwise noted.

x. Section 600.2 is amended by:

A. Revising the definition of Correspondence course.

B. Adding in alphabetical order a new definition of 

Distance education.

C. Removing the definition of Telecommunications course.

The addition and revision read as follows:
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§600.2 Definitions.

* * * * *

Correspondence course: (1) A course provided by an 

institution under which the institution provides instructional 

materials, by mail or electronic transmission, including 

examinations on the materials, to students who are separated 

from the instructor. Interaction between the instructor and 

student is limited, is not regular and substantive, and is 

primarily initiated by the student. Correspondence courses are 

typically self-paced.

(2) If a course is part correspondence and part 

residential training, the Secretary considers the course to be a 

correspondence course.

(3) A correspondence course is not distance education.

* * * * *

Distance education means education that uses one or more of 

the technologies listed in paragraphs (1) through (4) to deliver 

instruction to students who are separated from the instructor 

and to support regular and substantive interaction between the 

students and the instructor, either synchronously or 

asynchronously. The technologies may include--

(1) The internet;
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(2) One-way and two-way transmissions through open 

broadcast, closed circuit, cable, microwave, broadband lines, 

fiber optics, satellite, or wireless communications devices;

(3) Audio conferencing; or

(4) Video cassettes, DVDs, and CD-ROMs, if the cassettes, 

DVDs, or CD-ROMs are used in a course in conjunction with any of 

the technologies listed in paragraphs (1) through (3).

* * * * *

PART 602--THE SECRETARY’S RECOGNITION OF ACCREDITING AGENCIES

x. The authority citation for part 602 continues to read 

as follows:

AUTHORITY: 20 U.S.C. 1099b, unless otherwise noted.

x. Section 602.3 is amended by:

A. Adding in alphabetical order a new definition of 

Compliance report.

B. Adding in alphabetical order a new definition of 

Correspondence education.

C. Adding in alphabetical order a new definition of 

Designated Federal Official.

D. Adding in alphabetical order a new definition of Direct 

assessment program.

E. Revising the definition of Distance education.

F. Adding in alphabetical order a new definition of 

Recognition.
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G. Revising the definition of Scope of recognition.

H. Revising the definition of Teach-out agreement.

I. Adding in alphabetical order a new definition of Teachout plan.

The additions and revisions read as follows:

§602.3 What definitions apply to this part?

* * * * *

Compliance report means a written report that the 

Department requires an agency to file to demonstrate that the 

agency has addressed deficiencies specified in a decision letter 

from the senior Department official or the Secretary.

Correspondence education means: 

(1) Education provided through one or more courses by an 

institution under which the institution provides instructional 

materials, by mail or electronic transmission, including 

examinations on the materials, to students who are separated 

from the instructor. 

(2) Interaction between the instructor and the student is 

limited, is not regular and substantive, and is primarily 

initiated by the student.

(3) Correspondence courses are typically self-paced.

(4) Correspondence education is not distance education.
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Designated Federal Official means the Federal officer 

designated under section 10(f) of the Federal Advisory Committee 

Act, 5 U.S.C. Appdx. 1.

Direct assessment program means an instructional program 

that, in lieu of credit hours or clock hours as a measure of 

student learning, utilizes direct assessment of student 

learning, or recognizes the direct assessment of student 

learning by others, and meets the conditions of 34 CFR 668.10. 

For title IV, HEA purposes, the institution must obtain approval 

for the direct assessment program from the Secretary under 34 

CFR 668.10(g) or (h) as applicable. As part of that approval, 

the accrediting agency must--

(1) Evaluate the program(s) and include them in the 

institution’s grant of accreditation or preaccreditation; and 

(2) Review and approve the institution’s claim of each 

direct assessment program’s equivalence in terms of credit or 

clock hours.

Distance education means education that uses one or more of 

the technologies listed in paragraphs (1) through (4) to deliver 

instruction to students who are separated from the instructor 

and to support regular and substantive interaction between the 

students and the instructor, either synchronously or 

asynchronously. The technologies may include--

(1) The internet;
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(2) One-way and two-way transmissions through open 

broadcast, closed circuit, cable, microwave, broadband lines, 

fiber optics, satellite, or wireless communications devices;

(3) Audio conferencing; or

(4) Video cassettes, DVDs, and CD-ROMs, if the cassettes, 

DVDs, or CD-ROMs are used in a course in conjunction with any of 

the technologies listed in paragraphs (1) through (3).

* * * * *

Recognition means an unappealed determination by the senior 

Department official under §602.36, or a determination by the 

Secretary on appeal under §602.37, that an accrediting agency 

complies with the criteria for recognition listed in subpart B 

of this part and that the agency is effective in its application 

of those criteria.

A grant of recognition to an agency as a reliable authority 

regarding the quality of education or training offered by 

institutions or programs it accredits remains in effect for the 

term granted except upon a determination made in accordance with 

subpart C of this part that the agency no longer complies with 

the subpart B criteria or that it has become ineffective in its 

application of those criteria.

* * * * *

Scope of recognition or scope means the range of 

accrediting activities for which the Secretary recognizes an 
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agency. The Secretary may place a limitation on the scope of an

agency’s recognition for title IV, HEA purposes. The 

Secretary’s designation of scope defines the recognition granted 

according to--

* * *

(5) Coverage of accrediting activities related to distance 

education or correspondence education.

* * * * *

Teach-out agreement means a written agreement between 

institutions that provides for the equitable treatment of 

students and a reasonable opportunity for students to complete 

their program of study if an institution, or an institutional 

location that provides one hundred percent of at least one 

program offered, ceases to operate before all enrolled students 

have completed their program of study.

Teach-out plan means a written plan developed by an 

institution that provides for the equitable treatment of 

students if an institution, or an institutional location that 

provides one hundred percent of at least one program, ceases to 

operate before all students have completed their program of 

study, and may include, if required by the institution’s 

accrediting agency, a teach-out agreement between institutions.

* * * * *

x. Section 602.15 is amended by:
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A. Revising paragraph (a)(2).

B. In paragraph (b)(1), removing the word "two" and 

removing the letter "s" from the word "reviews" the first time 

it appears. 

C. Revising paragraph (b)(2)

The revisions read as follows:

§602.15 Administrative and fiscal responsibilities.

* * * * *

(a) * * *

(2) Competent and knowledgeable individuals, qualified by 

education and experience in their own right and trained by the 

agency on their responsibilities, as appropriate for their 

roles, regarding the agency’s standards, policies, and 

procedures, to conduct its on-site evaluations, apply or 

establish its policies, and make its accrediting and 

preaccrediting decisions, including, if applicable to the 

agency’s scope, their responsibilities regarding distance 

education and correspondence education;

* * * * *

 (b) * * *

 (2) All decisions made throughout an institution’s or 

program’s affiliation with the agency regarding the 

accreditation and preaccreditation of any institution or program 
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and substantive changes, including all correspondence that is 

significantly related to those decisions.

* * * * *

x. Section 602.16 by amended by: 

A. Redesignating paragraphs (c) and (d) as paragraphs (d) 

and (e), respectively.

B. Revising paragraph (a)(1)(i).

C. Adding new paragraphs (c) and (f). 

The additions and revision read as follows:

§602.16 Accreditation and preaccreditation standards.

(a) * * *

(1) * * *

(i) Success with respect to student achievement in 

relation to the institution’s mission, which may include 

different standards for different institutions or programs, as 

established by the institution, including, as appropriate, 

consideration of State licensing examinations, course 

completion, and job placement rates.

* * * * *

(c) If the agency has or seeks to include within its scope 

of recognition the evaluation of the quality of institutions or 

programs offering distance education or correspondence 

education, the agency’s standards must effectively address the 

quality of an institution’s distance education or correspondence 
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education in the areas identified in paragraph (a)(1) of this 

section. The agency is not required to have separate standards, 

procedures, or policies for the evaluation of distance education 

or correspondence education.

* * * * *

(f) Nothing in paragraph (a) of this section restricts--

(1) An accrediting agency from setting, with the 

involvement of its members, and applying accreditation standards 

for or to institutions or programs that seek review by the 

agency; or

(2) An institution from developing and using institutional 

standards to show its success with respect to student 

achievement, which achievement may be considered as part of any 

accreditation review.

* * * * *

x. Section 602.17 is amended by:

 A. In paragraph (e), removing the word "and" at the end of 

the paragraph.

 B. In paragraph (f), removing the punctuation "." and 

adding, in its place, the words "; and".

 C. Adding a new paragraph (g).

 The addition reads as follows:

§602.17 Application of standards in reaching an accrediting 

decision.
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* * * * *

(g) Requires institutions that offer distance education or 

correspondence education to have processes in place through 

which the institution establishes that the student who registers 

in a distance education or correspondence education course or 

program is the same student who participates in and completes 

the course or program and receives the academic credit. The 

agency meets this requirement if it--

(1) Requires institutions to verify the identity of a 

student who participates in class or coursework by using, at the 

option of the institution, methods such as--

(i) A secure login and pass code;

(ii) Proctored examinations; and 

(iii) New or other technologies and practices that are 

effective in verifying student identification; and 

(2) Makes clear in writing that institutions must use 

processes that protect student privacy and notify students of 

any projected additional student charges associated with the 

verification of student identity at the time of registration or 

enrollment.

* * * * *

x. Section 602.18 is amended by:

A. Revising the introductory text.
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B. Redesignating paragraphs (a), (b), and (c) as 

paragraphs (b), (c), and (d), respectively.

C. In newly redesignated paragraph (c), removing the word 

"and" at the end of the paragraph.

D. In newly redesignated paragraph (d), removing the 

punctuation "." and adding, in its place, the words "; and".

E. Adding new paragraphs (a) and (e).

The additions and revision read as follows:

§602.18 Ensuring consistency in decision-making.

The agency must consistently apply and enforce its 

standards that respect the stated mission of the institution, 

including religious mission, and that ensure that the education 

or training offered by an institution or program, including any 

offered through distance education or correspondence education, 

is of sufficient quality to achieve its stated objective for the 

duration of any accreditation or preaccreditation period granted 

by the agency. The agency meets this requirement if the agency-

-

(a) Has written specification of the requirements for 

accreditation and preaccreditation that include clear standards 

for an institution or program to be accredited;

* * * * *

(e) Provides the institution or program with a detailed 

written report that clearly identifies any deficiencies in the 
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institution’s or program’s compliance with the agency’s 

standards. 

* * * * *

x. Section 602.19 is amended by:

A. Revising paragraph (b).

 B. Adding new paragraphs (c), (d), and (e).

The revision and additions read as follows: 

§602.19 Monitoring and reevaluation of accredited institutions 

and programs.

 (a) * * * 

(b) The agency must demonstrate it has, and effectively 

applies, a set of monitoring and evaluation approaches that 

enables the agency to identify problems with an institution’s or 

program’s continued compliance with agency standards and that 

takes into account institutional or program strengths and 

stability. These approaches must include periodic reports, and 

collection and analysis of key data and indicators, identified 

by the agency, including, but not limited to, fiscal information

and measures of student achievement, consistent with the 

provisions of §602.16(f). This provision does not require 

institutions or programs to provide annual reports on each 

specific accreditation criterion. 

(c) Each agency must monitor overall growth of the 

institutions or programs it accredits and, at least annually, 
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collect headcount enrollment data from those institutions or 

programs. 

(d) Institutional accrediting agencies must monitor the 

growth of programs at institutions experiencing significant 

enrollment growth, as reasonably defined by the agency. 

(e) Any agency that has notified the Secretary of a change 

in its scope in accordance with §602.27(a)(5) must monitor the 

headcount enrollment of each institution it has accredited that 

offers distance education or correspondence education. If any 

such institution has experienced an increase in headcount 

enrollment of 50 percent or more within one institutional fiscal 

year, the agency must report that information to the Secretary 

within 30 days of acquiring such data. 

* * * * * 

x. Section 602.22 is amended by:

A. In paragraph (a)(2)(iii), removing the words ", in 

either content" and adding, in their place, the words "from the 

existing offerings of educational programs,".

B. In paragraph (a)(2)(iv), removing the words "courses 

or" and adding the words "of study" after the word "programs" 

the first time it appears, and removing the word "above" and 

adding, in its place, the words "different from". 

C. Revising paragraph (a)(2)(vii).
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D. Adding new paragraphs (a)(2)(viii), (a)(2)(ix), and 

(a)(2)(x).

E. Adding a new paragraph (a)(3).

F. Revising paragraph (b).

G. Revising paragraph (c), introductory text.

H. In paragraph (c)(2), adding the words "a representative 

sample of" immediately after the words "visits to".

The additions and revisions read as follows: 

§602.22 Substantive change.

(a) * * * 

(2) * * * 

(vii) If the agency’s accreditation of an institution 

enables the institution to seek eligibility to participate in 

title IV, HEA programs, the entering into a contract under which

an institution or organization not certified to participate in 

the title IV, HEA programs offers more than 25 percent of one or 

more of the accredited institution’s educational programs. 

(viii)(A) If the agency’s accreditation of an institution 

enables it to seek eligibility to participate in title IV, HEA 

programs, the establishment of an additional location at which 

the institution offers at least 50 percent of an educational 

program. The addition of such a location must be approved by 

the agency in accordance with paragraph (c) of this section 
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unless the accrediting agency determines, and issues a written 

determination stating that the institution has--

(1) Successfully completed at least one cycle of 

accreditation of maximum length offered by the agency and one 

renewal, or has been accredited for at least ten years;

(2) At least three additional locations that the agency 

has approved; and

(3) Met criteria established by the agency indicating 

sufficient capacity to add additional locations without 

individual prior approvals, including at a minimum satisfactory 

evidence of a system to ensure quality across a distributed 

enterprise that includes--

(i) Clearly identified academic control;

(ii) Regular evaluation of the locations;

(iii) Adequate faculty, facilities, resources, and 

academic and student support systems;

(iv) Financial stability; and

(v) Long-range planning for expansion.

(B) The agency’s procedures for approval of an additional 

location, pursuant to paragraph (a)(2)(viii)(A) of this section, 

must require timely reporting to the agency of every additional 

location established under this approval. 

(C) Each agency determination or redetermination to 

preapprove an institution's addition of locations under 
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paragraph (a)(2)(viii)(A) of this section may not exceed five 

years. 

(D) The agency may not preapprove an institution’s 

addition of locations under paragraph (a)(2)(viii)(A) of this 

section after the institution undergoes a change in ownership 

resulting in a change in control as defined in 34 CFR 600.31 

until the institution demonstrates that it meets the conditions 

for the agency to preapprove additional locations described in 

this paragraph. 

(E) The agency must have an effective mechanism for 

conducting, at reasonable intervals, visits to a representative 

sample of additional locations approved under paragraph 

(a)(2)(viii)(A) of this section.

(ix) The acquisition of any other institution or any 

program or location of another institution.

(x) The addition of a permanent location at a site at 

which the institution is conducting a teach-out for students of 

another institution that has ceased operating before all 

students have completed their program of study. 

(3) The agency’s substantive change policy must define 

when the changes made or proposed by an institution are or would 

be sufficiently extensive to require the agency to conduct a new 

comprehensive evaluation of that institution.
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(b) The agency may determine the procedures it uses to 

grant prior approval of the substantive change. However, these 

procedures must specify an effective date, which is not 

retroactive, on which the change is included in the program’s or 

institution’s accreditation. An agency may designate the date 

of a change in ownership as the effective date of its approval 

of that substantive change if the accreditation decision is made 

within 30 days of the change in ownership. Except as provided 

in paragraph (c) of this section, these procedures may, but need 

not, require a visit by the agency.

(c) Except as provided in paragraph (a)(2)(viii)(A) of 

this section, if the agency’s accreditation of an institution 

enables the institution to seek eligibility to participate in 

title IV, HEA programs, the agency’s procedures for the approval 

of an additional location where at least 50 percent of an 

educational program is offered must provide for a determination 

of the institution’s fiscal and administrative capacity to 

operate the additional location. In addition, the agency’s 

procedures must include--

* * * * * 

x. Section 602.23 is amended by:

A. Revising paragraph (a), introductory text.

B. Revising paragraph (c)(1).

The revisions read as follows:
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§602.23 Operating procedures all agencies must have.

(a) The agency must maintain and make available to the 

public written materials describing--

* * * * *

(c) * * *

(1) Review in a timely, fair, and equitable manner any 

complaint it receives against an accredited institution or 

program that is related to the agency’s standards or procedures. 

The agency may not complete its review and make a decision 

regarding a complaint unless, in accordance with published 

procedures, it ensures that the institution or program has 

sufficient opportunity to provide a response to the complaint;

* * * * *

x. Section 602.24 is amended by:

A. Revising paragraph (c).

B. Adding new paragraphs (d) and (e).

The addition and revision read as follows:

§602.24 Additional procedures certain institutional accreditors 

must have.

* * * * *

(c) Teach-out plans and agreements. (1) The agency must 

require an institution it accredits or preaccredits to submit a 

teach-out plan to the agency for approval upon the occurrence of 

any of the following events:
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(i) The Secretary notifies the agency that the Secretary 

has initiated an emergency action against an institution, in 

accordance with section 487(c)(1)(G) of the HEA, or an action to 

limit, suspend, or terminate an institution participating in any 

title IV, HEA program, in accordance with section 487(c)(1)(F) 

of the HEA, and that a teach-out plan is required.

(ii) The agency acts to withdraw, terminate, or suspend 

the accreditation or preaccreditation of the institution.

(iii) The institution notifies the agency that it intends 

to cease operations entirely or close a location that provides 

one hundred percent of at least one program.

(iv) A State licensing or authorizing agency notifies the 

agency that an institution’s license or legal authorization to 

provide an educational program has been or will be revoked.

(2) The agency must evaluate the teach-out plan to ensure 

it provides for the equitable treatment of students under 

criteria established by the agency, specifies additional 

charges, if any, and provides for notification to the students 

of any additional charges.

(3) If the agency approves a teach-out plan that includes 

a program that is accredited by another recognized accrediting 

agency, it must notify that accrediting agency of its approval.
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(4) The agency may require an institution it accredits or 

preaccredits to enter into a teach-out agreement as part of its 

teach-out plan.

(5) The agency must require an institution it accredits or 

preaccredits that enters into a teach-out agreement, either on 

its own or at the request of the agency, to submit that teachout agreement for approval. The agency may approve the teachout agreement only if the agreement is between institutions that 

are accredited or preaccredited by a nationally recognized 

accrediting agency, is consistent with applicable standards and 

regulations, and provides for the equitable treatment of 

students by ensuring that--

(i) The teach-out institution has the necessary 

experience, resources, and support services to--

(A) Provide an educational program that is of acceptable 

quality and reasonably similar in content, structure, and 

scheduling to that provided by the institution that is ceasing 

operations either entirely or at one of its locations; and

(B) Remain stable, carry out its mission, and meet all 

obligations to existing students; and

(ii) The teach-out institution demonstrates that it can 

provide students access to the program and services without 

requiring them to move or travel substantial distances and that 
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it will provide students with information about additional 

charges, if any.

(d) Closed institution. If an institution the agency 

accredits or preaccredits closes without a teach-out plan or 

agreement, the agency must work with the Department and the 

appropriate State agency, to the extent feasible, to assist

students in finding reasonable opportunities to complete their 

education without additional charges.

(e) Transfer of credit policies. The accrediting agency 

must confirm, as part of its review for initial accreditation or 

preaccreditation, or renewal of accreditation, that the 

institution has transfer of credit policies that--

(1) Are publicly disclosed in accordance with §668.43(x); 

and

(2) Include a statement of the criteria established by the 

institution regarding the transfer of credit earned at another 

institution of higher education.

* * * * *

x. Section 602.25 is amended to read as follows:

§602.25 Due process.

The agency must demonstrate that the procedures it uses 

throughout the accrediting process satisfy due process. The 

agency meets this requirement if the agency does the following:
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(a) Provides adequate written specification of its 

requirements, including clear standards, for an institution or 

program to be accredited or preaccredited.

(b) Uses procedures that afford an institution or program 

a reasonable period of time to comply with the agency’s requests 

for information and documents.

(c) Provides written specification of any deficiencies 

identified at the institution or program examined.

(d) Provides sufficient opportunity for a written response 

by an institution or program regarding any deficiencies 

identified by the agency, to be considered by the agency within 

a timeframe determined by the agency, and before any adverse 

action is taken.

(e) Notifies the institution or program in writing of any 

adverse accrediting action or an action to place the institution 

or program on probation or show cause. The notice describes the 

basis for the action. 

(f) Provides an opportunity, upon written request of an 

institution or program, for the institution or program to appeal 

any adverse action prior to the action becoming final. 

(1) The appeal must take place at a hearing before an

appeals panel that--

(i) May not include current members of the agency’s 

decision-making body that took the initial adverse action;
24

(ii) Is subject to a conflict of interest policy; and

(iii) Affirms, amends, or reverses the adverse action, 

which will be implemented by the appeals panel or by the 

original decision-making body, at the agency's option. If the 

original decision-making body is responsible for implementing 

the appeals panel's decision, that body must act regarding the 

institution's or program's accreditation status in a manner 

consistent with the appeals panel's decision.

(2) The agency must recognize the right of the institution 

or program to employ counsel to represent the institution or 

program during its appeal, including to make any presentation 

that the agency permits the institution or program to make on 

its own during the appeal.

(g) The agency notifies the institution or program in 

writing of the result of its appeal and the basis for that 

result.

(h)(1) The agency must provide for a process, in 

accordance with written procedures, through which an institution 

or program may, before the agency reaches a final adverse action 

decision, seek review of new financial information if all of the 

following conditions are met:

(i) The financial information was unavailable to the 

institution or program until after the decision subject to 

appeal was made.
25

(ii) The financial information is significant and bears 

materially on the financial deficiencies identified by the 

agency. The criteria of significance and materiality are 

determined by the agency. 

(iii) The only remaining deficiency cited by the agency in 

support of a final adverse action decision is the institution’s 

or program’s failure to meet an agency standard pertaining to 

finances.

(2) An institution or program may seek the review of new 

financial information described in paragraph (h)(1) of this 

section only once and any determination by the agency made with 

respect to that review does not provide a basis for an appeal.

(Authority: 20 U.S.C. 1099b) 

x. Section 602.26 is amended by:

A. In paragraph (b)(2), removing the punctuation ";" and 

adding, in its place, the punctuation ".".

B. Adding a new paragraph (b)(3).

C. In paragraph (c), removing the words "(b)(1) and 

(b)(2)" and adding, in their place, the words "(b)(1), (b)(2), 

and (b)(3)".

D. Revising paragraph (d).

The addition and revision read as follows:

§602.26 Notification of accrediting decisions.

* * * * *
26

(b) * * *

(3) A final decision to take any other adverse action, as 

defined by the agency, not listed in paragraph (b)(2) of this 

section;

* * * * *

 (d) For any decision listed in paragraph (b)(2) of this 

section, makes available to the Secretary, the appropriate State 

licensing or authorizing agency, and the public, no later than 

60 days after the decision, a brief statement summarizing the 

reasons for the agency’s decision and the official comments that 

the affected institution or program may wish to make with regard 

to that decision, or evidence that the affected institution has 

been offered the opportunity to provide official comment;

* * * * *

x. Section 602.27 is amended to read as follows:

§602.27 Other information an agency must provide the Department.

(a) The agency must submit to the Department--

(1) A copy of any annual report it prepares;

(2) A copy, updated annually, of its directory of 

accredited and preaccredited institutions and programs;

(3) A summary of the agency's major accrediting activities 

during the previous year (an annual data summary), if requested 

by the Secretary to carry out the Secretary's responsibilities 

related to this part;
27

(4) Any proposed change in the agency's policies, 

procedures, or accreditation or preaccreditation standards that 

might alter its--

(i) Scope of recognition, except as provided in paragraph 

(5); or

(ii) Compliance with the criteria for recognition;

(5) Notification that the agency has expanded its scope of 

recognition to include distance education or correspondence 

education as provided in section 496(a)(4)(B)(i)(I) of the HEA. 

Such an expansion of scope is effective on the date the 

Department receives the notification;

(6) The name of any institution or program it accredits 

that the agency has reason to believe is failing to meet its 

title IV, HEA program responsibilities or is engaged in fraud or 

abuse, along with the agency's reasons for concern about the 

institution or program; and

(7) If the Secretary requests, information that may bear 

upon an accredited or preaccredited institution's compliance 

with its title IV, HEA program responsibilities, including the 

eligibility of the institution or program to participate in 

title IV, HEA programs. 

(b) If an agency has a policy regarding notification to an 

institution or program of contact with the Department in 

accordance with paragraphs (a)(6) or (a)(7), it must provide for 
28

a case by case review of the circumstances surrounding the 

contact, and the need for the confidentiality of that contact. 

Upon a specific request by the Department, the agency must 

consider that contact confidential. 

(Authority: 20 U.S.C. 1099b)

x. Subpart C is revised to read as follows: 

Subpart C--The Recognition Process

Application and Review by Department Staff

§602.30 Activities covered by recognition procedures.

Recognition proceedings are administrative actions taken on 

any of the following matters:

(a) Applications for initial or continued recognition 

submitted under §602.31(a).

(b) Applications for an expansion of scope submitted under 

§602.31(b). 

(c) Compliance reports submitted under §602.31(c).

(d) Reviews of agencies that have expanded their scope of 

recognition by notice, following receipt by the Department of 

information of an increase in headcount enrollment described in 

§602.19(e). 

(e) Staff analyses identifying areas of non-compliance 

based on a review conducted under §602.33.

(Authority: 20 U.S.C. 1099b)

§602.31 Agency submissions to the Department.
29

(a) Applications for recognition or renewal of 

recognition. An accrediting agency seeking initial or continued 

recognition must submit a written application to the Secretary. 

Each accrediting agency must submit an application for continued 

recognition at least once every five years, or within a shorter 

time period specified in the final recognition decision. The 

application must consist of--

(1) A statement of the agency’s requested scope of 

recognition;

 (2) Evidence, including documentation, that the agency 

complies with the criteria for recognition listed in subpart B 

of this part and effectively applies those criteria; and

(3) Evidence, including documentation, of how an agency 

that includes or seeks to include distance education or 

correspondence education in its scope of recognition applies its 

standards in evaluating programs and institutions it accredits 

that offer distance education or correspondence education.

(b) Applications for expansions of scope. An agency 

seeking an expansion of scope by application must submit a 

written application to the Secretary. The application must--

(1) Specify the scope requested;

(2) Include documentation of experience in accordance with 

§602.12(b); and
30

(3) Provide copies of any relevant standards, policies or 

procedures developed and applied by the agency and documentation 

of the application of these standards, policies or procedures. 

(c) Compliance reports. If an agency is required to 

submit a compliance report, it must do so within 30 days 

following the end of the period for achieving compliance as 

specified in the decision of the senior Department official or 

Secretary, as applicable.

(d) Review following an increase in headcount enrollment. 

If an agency that has notified the Secretary in writing of its 

change in scope to include distance education or correspondence 

education in accordance with §602.27(a)(5) reports an increase 

in headcount enrollment in accordance with §602.19(e) for an 

institution it accredits, or if the Department notifies the 

agency of such an increase at one of the agency’s accredited 

institutions, the agency must, within 45 days of reporting the 

increase or receiving notice of the increase from the 

Department, as applicable, submit a report explaining--

(1) How the agency evaluates the capacity of the

institutions or programs it accredits to accommodate significant 

growth in enrollment and to maintain educational quality; 

(2) The specific circumstances regarding the growth at the 

institution(s) or programs(s) that triggered the review and the 

results of any evaluation conducted by the agency; and
31

(3) Any other information that the agency deems 

appropriate to demonstrate the effective application of the 

criteria for recognition or that the Department may require.

(e) Consent to sharing of information. By submitting an 

application for recognition, the agency authorizes Department 

staff throughout the application process and during any period 

of recognition--

(1) To observe its site visits to one or more of the 

institutions or programs it accredits or preaccredits, on an 

announced or unannounced basis; 

(2) To visit locations where agency activities such as 

training, review and evaluation panel meetings, and decision 

meetings take place, on an announced or unannounced basis; 

(3) To obtain copies of all documents the staff deems 

necessary to complete its review of the agency; and 

(4) To gain access to agency records, personnel and 

facilities.

(f) Public availability of agency records obtained by the 

Department. (1) The Secretary’s processing and decision making 

on requests for public disclosure of agency materials reviewed 

under this part are governed by the Freedom of Information Act,

5 U.S.C. §552; the Trade Secrets Act, 18 U.S.C. §1905; the 

Privacy Act of 1974, as amended, 5 U.S.C §552a; the Federal 
32

Advisory Committee Act, 5 U.S.C. Appdx. 1, and all other 

applicable laws. In recognition proceedings, agencies may--

(i) Redact information that would identify individuals or 

institutions that is not essential to the Department’s review of 

the agency;

(ii) Make a good faith effort to designate all business 

information within agency submissions that the agency believes 

would be exempt from disclosure under exemption 4 of the Freedom 

of Information Act (FOIA), 5 U.S.C. §552(b)(4). A blanket 

designation of all information contained within a submission, or 

of a category of documents, as meeting this exemption will not 

be considered a good faith effort and will be disregarded;

(iii) Identify any other material the agency believes 

would be exempt from public disclosure under FOIA, the factual 

basis for the request, and any legal basis the agency has 

identified for withholding the document from disclosure; and

(iv) Ensure documents submitted are only those required 

for Department review or as requested by Department officials.

(2) The Secretary processes FOIA requests in accordance 

with 34 CFR part 5 and makes all documents provided to the 

Advisory Committee available to the public.

(Authority: 20 U.S.C. 1099b)
33

§602.32 Procedures for Department review of applications for 

recognition or for change in scope, compliance reports, and 

increases in enrollment.

(a) After receipt of an agency’s application for initial 

or continued recognition, or change in scope, or an agency’s 

compliance report, or an agency’s report submitted under 

§602.31(d), Department staff publishes a notice of the agency’s 

application or report in the Federal Register inviting the 

public to comment on the agency’s compliance with the criteria 

for recognition and establishing a deadline for receipt of 

public comment.

(b) The Department staff analyzes the agency’s application 

for initial or renewal of recognition, compliance report, or 

report submitted under §602.31(d) to determine whether the 

agency satisfies the criteria for recognition, taking into 

account all available relevant information concerning the 

compliance of the agency with those criteria and in the agency’s 

effectiveness in applying the criteria. The analysis of an 

application for recognition and, as appropriate, of a report 

required under §602.31(c) or (d), includes--

(1) Observations from site visit(s), on an announced or 

unannounced basis, to the agency or to a location where agency 

activities such as training, review and evaluation panel 
34

meetings, and decision meetings take place and to one or more of 

the institutions or programs it accredits or preaccredits;

(2) Review of the public comments and other third-party 

information the Department staff receives by the established 

deadline, and the agency’s responses to the third-party 

comments, as appropriate, as well as any other information 

Department staff assembles for purposes of evaluating the agency 

under this part; and

(3) Review of complaints or legal actions involving the 

agency.

(c) The Department staff analyzes the materials submitted 

in support of an application for expansion of scope to ensure 

that the agency has the requisite experience, policies that 

comply with subpart B of this part, capacity, and performance 

record to support the request.

(d) Department staff’s evaluation of an agency may also 

include a review of information directly related to institutions 

or programs accredited or preaccredited by the agency relative 

to their compliance with the agency’s standards, the 

effectiveness of the standards, and the agency’s application of 

those standards.

(e) If, at any point in its evaluation of an agency 

seeking initial recognition, Department staff determines that 
35

the agency fails to demonstrate compliance with the basic 

eligibility requirements in §§602.10 through 602.13, the staff--

(1) Returns the agency’s application and provides the 

agency with an explanation of the deficiencies that caused staff 

to take that action; and

(2) Recommends that the agency withdraw its application 

and reapply when the agency can demonstrate compliance.

(f) Except with respect to an application that has been 

returned or is withdrawn under paragraph (e) of this section, 

when Department staff completes its evaluation of the agency, 

the staff--

(1) Prepares a written draft analysis of the agency; 

(2) Sends the draft analysis including any identified 

areas of non-compliance and a proposed recognition 

recommendation, and all supporting documentation, including all 

third-party comments the Department received by the established 

deadline, to the agency; 

(3) Invites the agency to provide a written response to 

the draft analysis and proposed recognition recommendation and 

third-party comments, specifying a deadline that provides at 

least 30 days for the agency’s response; 

(4) Reviews the response to the draft analysis the agency 

submits, if any, and prepares the written final analysis. The 

final analysis includes a recognition recommendation to the 
36

senior Department official, as the Department staff deems 

appropriate, including, but not limited to, a recommendation to 

approve, deny, limit, suspend, or terminate recognition, require 

the submission of a compliance report and continue recognition 

pending a final decision on compliance, approve or deny a 

request for expansion of scope, or revise or affirm the scope of 

the agency; and

(5) Provides to the agency, no later than seven days 

before the Advisory Committee meeting, the final staff analysis 

and any other available information provided to the Advisory 

Committee under §602.34(c).

(g) The agency may request that the Advisory Committee 

defer acting on an application at that Advisory Committee 

meeting if Department staff fails to provide the agency with the 

materials described, and within the timeframes provided, in 

paragraphs (f)(3) and (f)(5) of this section. If the Department 

staff’s failure to send the materials in accordance with the 

timeframe described in paragraph (f)(3) or (f)(5) of this 

section is due to the failure of the agency to submit reports to 

the Department, other information the Secretary requested, or 

its response to the draft analysis, by the deadline established 

by the Secretary, the agency forfeits its right to request a 

deferral of its application.

(Authority: 20 U.S.C. 1099b)
37

§602.33 Procedures for review of agencies during the period of 

recognition.

(a) Department staff may review the compliance of a 

recognized agency with the criteria for recognition at any time-

-

(1) At the request of the Advisory Committee; or

(2) Based on any information that, as determined by 

Department staff, appears credible and raises issues relevant to 

recognition.

(b) The review may include, but need not be limited to, 

any of the activities described in §602.32(b) and (d).

(c) If, in the course of the review, and after provision 

to the agency of the documentation concerning the inquiry and 

consultation with the agency, Department staff notes that one or 

more deficiencies may exist in the agency’s compliance with the 

criteria for recognition or in the agency’s effective 

application of those criteria, it--

(1) Prepares a written draft analysis of the agency’s 

compliance with the criteria of concern. The analysis reflects 

the results of the review, and includes a recommendation 

regarding what action to take with respect to recognition. 

Possible recommendations include, but are not limited to, a 

recommendation to limit, suspend, or terminate recognition, or 
38

require the submission of a compliance report and to continue 

recognition pending a final decision on compliance; 

(2) Sends the draft analysis including any identified 

areas of non-compliance, and a proposed recognition 

recommendation, and all supporting documentation to the agency; 

and

(3) Invites the agency to provide a written response to 

the draft analysis and proposed recognition recommendation, 

specifying a deadline that provides at least 30 days for the 

agency’s response.

(d) If, after review of the agency’s response to the draft 

analysis, Department staff concludes that the agency has 

demonstrated compliance with the criteria for recognition, the 

staff notifies the agency in writing of the results of the 

review. If the review was requested by the Advisory Committee, 

staff also provides the Advisory Committee with the results of 

the review.

(e) If, after review of the agency’s response to the draft 

analysis, Department staff concludes that the agency has not 

demonstrated compliance, the staff--

(1) Notifies the agency that the draft analysis will be 

finalized for presentation to the Advisory Committee;

(2) Publishes a notice in the Federal Register including, 

if practicable, an invitation to the public to comment on the 
39

agency’s compliance with the criteria in question and 

establishing a deadline for receipt of public comment;

(3) Provides the agency with a copy of all public comments 

received and, if practicable, invites a written response from 

the agency;

(4) Finalizes the staff analysis as necessary to reflect 

its review of any agency response and any public comment 

received; and

(5) Provides to the agency, no later than seven days 

before the Advisory Committee meeting, the final staff analysis 

and a recognition recommendation and any other information 

provided to the Advisory Committee under §602.34(c).

(f) The Advisory Committee reviews the matter in 

accordance with §602.34.

(Authority: 20 U.S.C. 1099b)

Review by the National Advisory Committee on Institutional 

Quality and Integrity

§602.34 Advisory Committee meetings.

(a) Department staff submits a proposed schedule to the 

Chairperson of the Advisory Committee based on anticipated 

completion of staff analyses. 

(b) The Chairperson of the Advisory Committee establishes 

an agenda for the next meeting and, in accordance with the 
40

Federal Advisory Committee Act, presents it to the Designated 

Federal Official for approval. 

(c) Before the Advisory Committee meeting, Department 

staff provides the Advisory Committee with--

(1) The agency’s application for recognition or for 

expansion of scope, the agency’s compliance report, or the 

agency’s report submitted under §602.31(d), and supporting 

documentation;

(2) The final Department staff analysis of the agency 

developed in accordance with §602.32 or §602.33, and any 

supporting documentation;

(3) At the request of the agency, the agency’s response to 

the draft staff analysis;

(4) Any written third-party comments the Department 

received about the agency on or before the established deadline;

(5) Any agency response to third-party comments; and 

(6) Any other information Department staff relied upon in 

developing its analysis.

(d) At least 30 days before the Advisory Committee 

meeting, the Department publishes a notice of the meeting in the 

Federal Register inviting interested parties, including those 

who submitted third-party comments concerning the agency’s 

compliance with the criteria for recognition, to make oral 

presentations before the Advisory Committee.
41

(e) The Advisory Committee considers the materials 

provided under paragraph (c) of this section in a public meeting 

and invites Department staff, the agency, and other interested 

parties to make oral presentations during the meeting. A 

transcript is made of all Advisory Committee meetings.

(f) The written motion adopted by the Advisory Committee 

regarding each agency’s recognition will be made available 

during the Advisory Committee meeting. The Department will 

provide each agency, upon request, with a copy of the motion on 

recognition at the meeting. Each agency that was reviewed will 

be sent an electronic copy of the motion relative to that agency 

as soon as practicable after the meeting. 

(g) After each meeting of the Advisory Committee at which 

a review of agencies occurs, the Advisory Committee forwards to 

the senior Department official its recommendation with respect 

to each agency, which may include, but is not limited to, a 

recommendation to approve, deny, limit, suspend, or terminate 

recognition, to grant or deny a request for expansion of scope, 

to revise or affirm the scope of the agency, or to require the 

agency to submit a compliance report and to continue recognition 

pending a final decision on compliance.

(Authority: 20 U.S.C. 1099b)

§602.35 Responding to the Advisory Committee’s recommendation.
42

(a) Within ten days following the Advisory Committee 

meeting, the agency and Department staff may submit written 

comments to the senior Department official on the Advisory 

Committee’s recommendation. The agency must simultaneously 

submit a copy of its written comments, if any, to Department

staff. Department staff must simultaneously submit a copy of 

its written comments, if any, to the agency.

(b) Comments must be limited to--

(1) Any Advisory Committee recommendation that the agency 

or Department staff believes is not supported by the record;

(2) Any incomplete Advisory Committee recommendation based 

on the agency’s application; and

(3) The inclusion of any recommendation or draft proposed 

decision for the senior Department official’s consideration.

(c)(1) Neither the Department staff nor the agency may 

submit additional documentary evidence with its comments unless 

the Advisory Committee’s recognition recommendation proposes 

finding the agency noncompliant with, or ineffective in its 

application of, a criterion or criteria for recognition not 

identified in the final Department staff analysis provided to 

the Advisory Committee.

(2) Within ten days of receipt by the Department staff of 

an agency’s comments or new evidence, if applicable, or of 

receipt by the agency of the Department staff’s comments, 
43

Department staff, the agency, or both, as applicable, may submit 

a response to the senior Department official. Simultaneously 

with submission, the agency must provide a copy of any response 

to the Department staff. Simultaneously with submission, 

Department staff must provide a copy of any response to the 

agency. 

(Authority: 20 U.S.C. 1099b)

Review and Decision by the Senior Department Official 

§602.36 Senior Department official’s decision.

(a) The senior Department official makes a decision 

regarding recognition of an agency based on the record compiled 

under §§602.32, 602.33, 602.34, and 602.35 including, as 

applicable, the following:

(1) The materials provided to the Advisory Committee under 

§602.34(c).

(2) The transcript of the Advisory Committee meeting.

(3) The recommendation of the Advisory Committee.

(4) Written comments and responses submitted under 

§602.35.

(5) New evidence submitted in accordance with 

§602.35(c)(1).

(6) A communication from the Secretary referring an issue 

to the senior Department official’s consideration under 

§602.37(e).
44

(b) In the event that statutory authority or 

appropriations for the Advisory Committee ends, or there are 

fewer duly appointed Advisory Committee members than needed to 

constitute a quorum, and under extraordinary circumstances when 

there are serious concerns about an agency’s compliance with 

subpart B of this part that require prompt attention, the senior 

Department official may make a decision in a recognition 

proceeding based on the record compiled under §602.32 or §602.33 

after providing the agency with an opportunity to respond to the 

final staff analysis. Any decision made by the senior 

Department official absent a recommendation from the Advisory 

Committee may be appealed to the Secretary as provided in 

§602.37.

(c) Following consideration of an agency’s recognition 

under this section, the senior Department official issues a 

recognition decision.

(d) Except with respect to decisions made under paragraphs 

(f) or (g) of this section and matters referred to the senior 

Department official under §602.37(e) or (f), the senior 

Department official notifies the agency in writing of the senior 

Department official’s decision regarding the agency’s 

recognition within 90 days of the Advisory Committee meeting or 

conclusion of the review under paragraph (b) of this section.
45

 (e) The senior Department official’s decision may include, 

but is not limited to, approving, denying, limiting, suspending, 

or terminating recognition, granting or denying an application 

for an expansion of scope, revising or affirming the scope of 

the agency, or continuing recognition pending submission and 

review of a compliance report under §§602.32 and 602.34 and 

review of the report by the senior Department official under 

this section.

(1)(i) The senior Department official approves recognition 

if the agency complies with the criteria for recognition listed 

in subpart B of this part and if the agency effectively applies

those criteria.

(ii) If the senior Department official approves 

recognition, the recognition decision defines the scope of 

recognition and the recognition period. The recognition period 

does not exceed five years, including any time during which 

recognition was continued to permit submission and review of a 

compliance report.

(iii) If the scope or period of recognition is less than 

that requested by the agency, the senior Department official 

explains the reasons for approving a lesser scope or recognition 

period.

(2)(i) Except as provided in paragraph (e)(3) of this 

section, if the agency either fails to comply with the criteria 
46

for recognition listed in subpart B of this part, or to apply 

those criteria effectively, the senior Department official 

denies, limits, suspends, or terminates recognition.

(ii) If the senior Department official denies, limits, 

suspends, or terminates recognition, the senior Department 

official specifies the reasons for this decision, including all 

criteria the agency fails to meet and all criteria the agency 

has failed to apply effectively.

(3)(i) Except as provided in paragraph (e)(3)(ii) of this 

section, if a recognized agency fails to demonstrate compliance 

with or effective application of a criterion or criteria, but 

the senior Department official concludes that the agency will 

demonstrate or achieve compliance with the criteria for 

recognition and effective application of those criteria within 

12 months or less, the senior Department official may continue 

the agency’s recognition, pending submission by the agency of a 

compliance report, review of the report under §§602.32 and 

602.34, and review of the report by the senior Department 

official under this section. In such a case, the senior 

Department official specifies the criteria the compliance report 

must address, and a time period, not longer than 12 months, 

during which the agency must achieve compliance and effectively 

apply the criteria. The compliance report documenting 

compliance and effective application of criteria is due not 
47

later than 30 days after the end of the period specified in the 

senior Department official’s decision. 

(ii) If the record includes a compliance report, and the 

senior Department official determines that an agency has not 

complied with the criteria for recognition, or has not 

effectively applied those criteria, during the time period 

specified by the senior Department official in accordance with 

paragraph (e)(3)(i) of this section, the senior Department 

official denies, limits, suspends, or terminates recognition, 

except, in extraordinary circumstances, upon a showing of good 

cause for an extension of time as determined by the senior 

Department official and detailed in the senior Department 

official’s decision. If the senior Department official 

determines good cause for an extension has been shown, the 

senior Department official specifies the length of the extension 

and what the agency must do during it to merit a renewal of 

recognition.

(f) If the senior Department official determines, based on 

the record, that a decision to deny, limit, suspend, or 

terminate an agency’s recognition may be warranted based on a 

finding that the agency is noncompliant with, or ineffective in 

its application of, a criterion or criteria of recognition not 

identified earlier in the proceedings as an area of 

noncompliance, the senior Department official provides--
48

(1) The agency with an opportunity to submit a written 

response and documentary evidence addressing the finding; and

(2) The staff with an opportunity to present its analysis 

in writing.

(g) If relevant and material information pertaining to an 

agency’s compliance with recognition criteria, but not contained 

in the record, comes to the senior Department official’s 

attention while a decision regarding the agency’s recognition is 

pending before the senior Department official, and if the senior 

Department official concludes the recognition decision should 

not be made without consideration of the information, the senior 

Department official either--

(1)(i) Does not make a decision regarding recognition of 

the agency; and

(ii) Refers the matter to Department staff for review and 

analysis under §602.32 or §602.33, as appropriate, and 

consideration by the Advisory Committee under §602.34; or

(2)(i) Provides the information to the agency and 

Department staff;

(ii) Permits the agency to respond to the senior 

Department official and the Department staff in writing, and to 

include additional evidence relevant to the issue, and specifies 

a deadline;
49

(iii) Provides Department staff with an opportunity to 

respond in writing to the agency’s submission under paragraph 

(g)(2)(ii) of this section, specifying a deadline; and

(iv) Issues a recognition decision based on the record 

described in paragraph (a) of this section, as supplemented by 

the information provided under this paragraph.

(h) No agency may submit information to the senior 

Department official, or ask others to submit information on its 

behalf, for purposes of invoking paragraph (g) of this section. 

Before invoking paragraph (g) of this section, the senior 

Department official will take into account whether the 

information, if submitted by a third party, could have been 

submitted in accordance with §602.32(a) or §602.33(e)(2).

(i) If the senior Department official does not reach a 

final decision to approve, deny, limit, suspend, or terminate an 

agency’s recognition before the expiration of its recognition 

period, the senior Department official automatically extends the 

recognition period until a final decision is reached.

(j) Unless appealed in accordance with §602.37, the senior 

Department official’s decision is the final decision of the 

Secretary.

(Authority: 20 U.S.C. 1099b)

Appeal Rights and Procedures
50

§602.37 Appealing the senior Department official’s decision to 

the Secretary.

(a) The agency may appeal the senior Department official’s 

decision to the Secretary. Such appeal stays the decision of 

the senior Department official until final disposition of the 

appeal. If an agency wishes to appeal, the agency must--

(1) Notify the Secretary and the senior Department 

official in writing of its intent to appeal the decision of the 

senior Department official, no later than ten days after receipt 

of the decision;

(2) Submit its appeal to the Secretary in writing no later 

than 30 days after receipt of the decision; and

(3) Provide the senior Department official with a copy of 

the appeal at the same time it submits the appeal to the 

Secretary.

(b) The senior Department official may file a written 

response to the appeal. To do so, the senior Department 

official must--

(1) Submit a response to the Secretary no later than 30 

days after receipt of a copy of the appeal; and

 (2) Provide the agency with a copy of the senior 

Department official’s response at the same time it is submitted 

to the Secretary.
51

(c) Neither the agency nor the senior Department official 

may include in its submission any new evidence it did not submit 

previously in the proceeding.

(d) On appeal, the Secretary makes a recognition decision, 

as described in §602.36(e). If the decision requires a 

compliance report, the report is due within 30 days after the 

end of the period specified in the Secretary’s decision. The 

Secretary renders a final decision after taking into account the 

senior Department official’s decision, the agency’s written 

submissions on appeal, the senior Department official’s response 

to the appeal, if any, and the entire record before the senior 

Department official. The Secretary notifies the agency in 

writing of the Secretary’s decision regarding the agency’s 

recognition.

(e) The Secretary may determine, based on the record, that 

a decision to deny, limit, suspend, or terminate an agency’s 

recognition may be warranted based on a finding that the agency 

is noncompliant with, or ineffective in its application with 

respect to, a criterion or criteria for recognition not 

identified as an area of noncompliance earlier in the 

proceedings. In that case, the Secretary, without further 

consideration of the appeal, refers the matter to the senior 

Department official for consideration of the issue under 

§602.36(f). After the senior Department official makes a 
52

decision, the agency may, if desired, appeal that decision to 

the Secretary. 

(f) If relevant and material information pertaining to an 

agency’s compliance with recognition criteria, but not contained 

in the record, comes to the Secretary’s attention while a 

decision regarding the agency’s recognition is pending before 

the Secretary, and if the Secretary concludes the recognition 

decision should not be made without consideration of the 

information, the Secretary either--

(1)(i) Does not make a decision regarding recognition of 

the agency; and

(ii) Refers the matter to Department staff for review and 

analysis under §602.32 or §602.33, as appropriate, and review by 

the Advisory Committee under §602.34; and consideration by the 

senior Department official under §602.36; or

(2)(i) Provides the information to the agency and the 

senior Department official;

(ii) Permits the agency to respond to the Secretary and 

the senior Department official in writing, and to include 

additional evidence relevant to the issue, and specifies a 

deadline;

(iii) Provides the senior Department official with an 

opportunity to respond in writing to the agency’s submission 
53

under paragraph (f)(2)(ii) of this section, specifying a 

deadline; and

(iv) Issues a recognition decision based on all the 

materials described in paragraphs (d) and (f) of this section.

(g) No agency may submit information to the Secretary, or 

ask others to submit information on its behalf, for purposes of 

invoking paragraph (f) of this section. Before invoking 

paragraph (f) of this section, the Secretary will take into 

account whether the information, if submitted by a third party, 

could have been submitted in accordance with §602.32(a) or 

§602.33(e)(2).

(h) If the Secretary does not reach a final decision on 

appeal to approve, deny, limit, suspend, or terminate an 

agency’s recognition before the expiration of its recognition 

period, the Secretary automatically extends the recognition 

period until a final decision is reached.

(Authority: 20 U.S.C. 1099b)

§602.38 Contesting the Secretary’s final decision to deny, 

limit, suspend, or terminate an agency’s recognition.

An agency may contest the Secretary’s decision under this 

part in the Federal courts as a final decision in accordance 

with applicable Federal law. Unless otherwise directed by the 

court, a decision of the Secretary to deny, limit, suspend, or 
54

terminate the agency’s recognition is not stayed during an 

appeal in the Federal courts.

(Authority: 20 U.S.C. 1099b)

x. Subpart D is removed in its entirety.

x. Subpart E is redesignated as subpart D.