Team III

– Accreditation

– Amendatory Language

May 18

- 20 , 2009 meeting

Prepared May 8, 2009 Page 1 For reasons discussed in the preamble, the Secretary 1
proposes to amend parts 600 and 602 of title 34 of the Code 2
of Federal Regulations as follows: 3

PART 600

-- INSTITUTIONAL ELIGIBILITY UNDER THE HIGHER 4

EDUCATION ACT OF 1965, AS AMENDED. 5
1. The authority c itation for part 600 continues to 6

read as follows: 7
Authority: 20 U.S.C. 1001, 1002, 1003, 1088, 1091, 8

1094, 1099b, and 1099c, unless otherwise noted. 9
x. Section 600.2 is amended by: 10
A. Revising the definition of Correspondence course

. 11
B. Adding in alp habetical order a new definition of 12

Distance education

. 13
C. Deleting the definition of Telecommunications 14

course
. 15

The addition and revision read as follows: 16

§600.2 Definitions

. 17

* * * * * 18

Correspondence course : (1) A course provided by an 19

institutio n under which the institution provides 20
instructional materials, by mail or electronic 21
transmission, including examinations on the materials, to 22
students who are separated from the instructor. 23Team III

– Accreditation

– Amendatory Language

May 18

- 20 , 2009 meeting

Prepared May 8, 2009 Page 2 Interaction between the instructor and student is limited, 1

is n ot regular and substantive, and is primarily initiated 2
by the student. Correspondence courses are typically self

3

paced. 4
(2) If a course is part correspondence and part 5
residential training, the Secretary considers the course to 6
be a correspondence cours e. 7

(3) A correspondence course is not distance 8

education. 9

* * * * * 10

Distance education means education that uses one or 11
more of the technologies listed in paragraphs (1) through 12
(4) to deliver instruction to students who are separated 13

from the instr uctor and to support regular and substantive 14

interaction between the students and the instructor, either 15
synchronously or asynchronously. The technologies may 16

include

-- 17

(1) The internet; 18

(2) One

- way and two

- way transmissions through open 19

broadcast, cl osed circuit, cable, microwave, broadband 20
lines, fiber optics, satellite, or wireless communications 21

devices; 22
(3) Audio conferencing; or 23Team III

– Accreditation

– Amendatory Language

May 18

- 20 , 2009 meeting

Prepared May 8, 2009 Page 3 (4) Video cassettes, DVDs, and CD

- ROMs, if the 1

cassettes, DVDs, or CD

- ROMs are used in a course in 2
conjunction with any of the technologies listed in 3

paragraphs (1) through (3). 4

PART 602

-- THE SECRETARY’S RECOGNITION OF ACCREDITING 5

AGENCIES 6

x . The authority citation for part 602 continues to 7

read as follows: 8
Authority: 20 U.S.C. 1099b, unless otherwise noted. 9
x. Section 602.3 is amended by: 10

A . Adding in alphabetical order a new definition of 11
Compliance report

. 12

B . Adding in alphabetical order a new definition of 13
Correspondence education

. 14

C

. Adding in alphabetical order a new definition of 15
Designated Feder al Official

. 16

D . Adding in alphabetical order a new definition of 17
Direct assessment program

. 18

E

. Revising the definition of Distance education

. 19

F . Adding in alphabetical order a new definition of 20
Recognition

. 21Team III

– Accreditation

– Amendatory Language

May 18

- 20 , 2009 meeting

Prepared May 8, 2009 Page 4 G . Revising the definition of Scope of re cognition by 1
adding at the end of paragraph (5) the phrase "or 2
correspondence education"

. 3

H

. Revising the definition of Teach

- out agreement

. 4

I

. Adding in alphabetical order a new definition of 5

Teach

- out plan

. 6

The additions and revisions read as follows: 7
§602.3 What definitions apply to this part ? 8

* * * * * 9
Compliance report means a written report that the 10
Department requires an agency to file to demonstrate that 11
the agency has addressed deficiencies specified in a 12

decision letter from the senior De partment official or the 13

Secretary. 14
Correspondence education means: 15
(1) Education provided through one or more courses by 16
an institution under which the institution provides 17
instructional materials, by mail or electronic 18
transmission, including examinat ions on the materials, to 19
students who are separated from the instructor. 20

(2) Interaction between the instructor and the 21
student is limited, is not regular and substantive, and is 22
primarily initiated by the student. 23Team III

– Accreditation

– Amendatory Language

May 18

- 20 , 2009 meeting

Prepared May 8, 2009 Page 5 (3) Correspondence courses are typica lly self

- paced. 1
(4) Correspondence education is not distance 2

education. 3
Designated Federal Official means the Federal officer 4
designated under section 10(f) of the Federal Advisory 5
Committee Act, 5 U.S.C. Appdx. 1. 6
Direct assessment program means an instr uctional 7
program that, in lieu of credit hours or clock hours as a 8
measure of student learning, utilizes direct assessment of 9
student learning, or recognizes the direct assessment of 10
student learning by others , and meets the conditions of 11

§668.10. For tit le IV purposes, the institution must 12
obtain approval for the direct assessment program from the 13

Secretary under §668.10 (g) or (h) as applicable. As part 14
of that approval, the accrediting agency must

-- 15
(1) Evaluate the program(s) and include them in the 16

i nstitution’s grant of accreditation or preaccreditation; 17

and 18
(2) Review and approve the institution’s claim of 19
each direct assessment program’s equivalence in terms of 20

credit or clock hours. 21

Distance education means education that uses one or 22

more of the technologies listed in paragraphs (1) through 23Team III

– Accreditation

– Amendatory Language

May 18

- 20 , 2009 meeting

Prepared May 8, 2009 Page 6 (4) to deliver instruction to students who are separated 1
from the instructor and to support regular and substantive 2

interaction between the students and the instructor, either 3

synchronously or asynchronously. The technologies may 4

include

-- 5

(1) The internet; 6

(2) One

- way and two

- way transmissions through open 7

broadcast, closed circuit, cable, microwave, broadband 8
lines, fiber optics, satellite, or wireless communications 9

devices; 10
(3) Audio conferencing; or 11

(4) Video cassettes, DVDs, and CD

- ROMs, if the 12

cassettes, DVDs, or CD

- ROMs are used in a course in 13
conjunction with any of the technologies listed in 14

paragraphs (1) through (3). 15

* * * * * 16
Recognition means an unappealed determination by the 17

senior Department official under §602.36, or a 18
determination by the Secretary on appeal under §602.37, 19
that an accrediting agency complies with the criteria for 20
recognition listed in subpart B of this part and that the 21
agency is effective in its application of th ose criteria. 22Team III

– Accreditation

– Amendatory Language

May 18

- 20 , 2009 meeting

Prepared May 8, 2009 Page 7 A grant of recognition to an agency as a reliable 1
authority regarding the quality of education or training 2
offered by institutions or programs it accredits remains in 3
effect for the term granted except upon a determination 4

made in accordance with subpart C that the agency no longer 5
complies with the subpart B criteria or that it has become 6
ineffective in its application of those criteria. 7

* * * * * 8
Scope of recognition or scope means the range of 9
accrediting activities for which the Secre tary recognizes 10
an agency. The Secretary may place a limitation on the 11
scope of any agency’s recognition for title IV, HEA 12
purposes. The Secretary’s designation of scope defines the 13
recognition granted to

-- 14

* * * 15
(5) Coverage of accrediting activities related to 16
distance education or correspondence education. 17

* * * * * 18

Teach

- out agreement means a written agreement between 19
institutions that provides for the equitable treatment of 20
students and a reasonable opportunity for students to 21
complete their program of study if an institution, or an 22
institutional location that provides one hundred percent of 23Team III

– Accreditation

– Amendatory Language

May 18

- 20 , 2009 meeting

Prepared May 8, 2009 Page 8 at least one program offered, ceases to operate before all 1
enrolled students have completed their program of study. 2

Teach

- out plan means a written plan d eveloped by an 3
institution that provides for the equitable treatment of 4

students if an institution, or an institutional location 5
that provides one hundred percent of at least one program, 6
ceases to operate before all students have completed their 7

program o f study, and may include, if required by the 8
institution’s accrediting agency, a teach

- out agreement 9

between institutions. 10
x. Section 602.15 is amended by : 11

A. Revising paragraph (a) (2)

. 12

B

. In paragraph (b)(1), removing the word " two " in 13

the first sent ence, and removing the letter " s " from the 14

word " reviews "

. 15
C. In paragraph (b)(2), adding the words " made 16
throughout an institution’s or program’s affiliation with 17

the agency " immediately after the word " decisions "

. 18
D. In paragraph (b)(2), adding the wo rds " and 19
substantive changes " immediately after the word " program "

. 20

The revision reads as follows: 21
§602.15 Administrative and fiscal responsibilities

. 22

* * * * * 23Team III

– Accreditation

– Amendatory Language

May 18

- 20 , 2009 meeting

Prepared May 8, 2009 Page 9 (a) * * * 1

(2) Competent and knowledgeable individuals, 2
qualified by education and exp erience in their own right 3
and trained by the agency on their responsibilities, as 4
appropriate for their roles, regarding the agency’s 5
standards, policies, and procedures, to conduct its on

- site 6
evaluations, apply or establish its policies, and make its 7

ac crediting and preaccrediting decisions, including, if 8
applicable to the agency’s scope, their responsibilities 9
regarding distance education and correspondence education; 10

x. Section 602.16 by amended by: 11

A . R edesignating paragraphs (c) and (d) as (d) and 12

(e)

. 13

B . R evising paragraph (a)(1)( i ). 14

C . A dd ing new paragraphs (c) and (f). 15

The additions and revision read as follows: 16

§602.1 6 Accreditation and preaccreditation standards

. 17

(a) * * * 18

(1) * * * 19
(i) Success with respect to student achievement in 20

rela tion to the institution’s mission, which may include 21
different standards for different institutions or programs, 22
as established by the institution, including, as 23Team III

– Accreditation

– Amendatory Language

May 18

- 20 , 2009 meeting

Prepared May 8, 2009 Page 10 appropriate, consideration of State licensing examinations, 1
course completion , and job placeme nt rates. 2

* * * * * 3
(c) If the agency has or seeks to include within its 4
scope of recognition the evaluation of the quality of 5
institutions or programs offering distance education or 6
correspondence education, the agency’s standards must 7
effectively ad dress the quality of an institution’s 8
distance education or correspondence education in the areas 9
identified in paragraph (a)(1). The agency is not required 10

to have separate standards, procedures , or policies for the 11

evaluation of distance education or co rrespondence 12

education. 13

* * * * * 14

(f) Not hing in paragraph (a) restricts

-- 15
(1) An accrediting agency from setting, with the 16
involvement of its members, and applying accreditation 17
standards for or to institutions or programs that seek 18
review by the agency; or 19
(2) An institution from developing and using 20
institutional standards to show its success with respect to 21
student achievement, which achievement may be considered as 22
part of any accreditation review. 23Team III

– Accreditation

– Amendatory Language

May 18

- 20 , 2009 meeting

Prepared May 8, 2009 Page 11 x. Section 602.17 is amended by adding a n ew 1

paragraph (g) as follows: 2
§602.17 Application of standards in reaching an 3
accrediting decision

. 4

* * * * * 5
(g) Requires institutions that offer distance 6
education or correspondence education to have processes in 7
place through which the institution establishes that the 8
student who registers in a distance education or 9
correspondence education course or program is the same 10
student who participates in and completes the course or 11
program and receives the academic credit. The agency me e ts 12
this requireme nt if it

-- 13
(1) Requires institutions to verify the identity of a 14
student who participates in class or coursework by using 15

methods such as

-- 16
(i) A secure login and pass code or proctored 17

examinations; and 18
(ii) New identification technologies and prac tices as 19
they become widely accepted; and 20
(2) Makes clear in writing that institutions must use 21
processes that protect student privacy and notify students, 22Team III

– Accreditation

– Amendatory Language

May 18

- 20 , 2009 meeting

Prepared May 8, 2009 Page 12 before enrollment, of additional costs, if any, associated 1

with verification. 2

x. Section 602.18 i s amended by : 3

A . Revising the introductory text. 4

B . Redesignating paragraphs (a),(b), and (c) as 5

paragraphs (b),(c), and (d). 6

C . Adding new paragraphs (a) and (e). 7

The additions and revisio n read as follows: 8
§602.18 Ensuring consistency in decision

- mak ing

. 9
The agency must consistently apply and enforce its 10
standards that respect the stated mission of the 11
institution, including religious mission, and that ensure 12
that the education or training offered by an institution or 13
program, including any offered t hrough distance education 14
or correspondence education, is of sufficient quality to 15
achieve its stated objective for the duration of any 16
accreditation or preaccreditation period granted by the 17

agency. The agency meets this requirement if the 18

agency

-- 19

(a) Has written specification of the requirements for 20
accreditation and preaccreditation that include clear 21
standards for an institution or program to be accredited; 22

* * * * * 23Team III

– Accreditation

– Amendatory Language

May 18

- 20 , 2009 meeting

Prepared May 8, 2009 Page 13 (e) Provides the institution or program with a 1

detailed written report that clearly identifies any 2

deficiencies in the institution’s or program’s compliance 3
with the agency’s standards. 4

x. Section 602.19 is amended by: 5

A. Revising paragraph (b). 6

B. Adding new paragraphs (c), (d), (e), (f), and (g). 7

The revision and additi ons read as follows: 8
§602.19 Monitoring and reevaluation of accredited 9
institutions and programs. 10

* * * * * 11

(a) * * * 12

(b) The agency must monitor institutions or programs 13
throughout their accreditation or preaccreditation period 14
by requiring pe riodic reports and conducting evaluations or 15

site visits , as necessary. 16

(c) The agency must monitor the growth of programs at 17
institutions experiencing significant enrollment growth, as 18
reasonably defined by the agency. 19

(d) The agency must monitor over all growth of the 20
institutions it accredits and, no less frequently than 21

annually, collect headcount enrollment data from those 22

institutions. 23Team III

– Accreditation

– Amendatory Language

May 18

- 20 , 2009 meeting

Prepared May 8, 2009 Page 14 (e) For the purposes of determining the need for 1
agency review of the status of the institution or program, 2

the agency must regularly collect and analyze key data and 3
performance indicators, including but not limited to 4

financial information and measures of student success. 5

(f) The agency must demonstrate it has, and 6
effectively applies, a set of monitoring and eva luation 7
approaches that enables the agency to identify potential 8
problems with an institution’s or program’s continued 9
compliance with agency standards and that takes into 10
account institutional or program strengths and stability. 11
This provision does not r equire institutions or programs to 12
provide annual reports on each specific accreditation 13

criterion. 14

(g) Any agency that has notified the Secretary of a 15
change in its s cope in accordance with §602.27 (a) (5) must 16

monitor the headcount enrollment of each ins titution it has 17
accredited that offers distance education or correspondence 18

education. If any institution has experienced an increase 19

in headcount enrollment of 50 percent or more within one 20
institutional fiscal year, the agency must report that 21

informati on to the Secretary within 30 days of acquiring 22

such data. 23Team III

– Accreditation

– Amendatory Language

May 18

- 20 , 2009 meeting

Prepared May 8, 2009 Page 15 * * * * * 1
x. Section 602.22 is amended by: 2
A. In paragraph (a)(2)(iii), removing the words " in 3

either content " immediately before the words " or method " 4
and adding in their place the words " from the existing 5
offerings of educational programs "

. 6

B . In paragraph (a)(2)(iv), removing the word " above " 7
immediately before the words " that which " and adding in its 8

place the words " different from "

. 9

C . Removing paragraph (a)(2)(vii). 10

D

. Addin g new paragraphs (a)(2)(vii), (a)(2)(viii), 11

(a)(2)(ix), (a)(2)(x), and (a)(2)(xi). 12

E

. Adding a new paragraph (a)(3). 13

F . Revising paragraph (b). 14

G

. Revising the paragraph (c) introductory text. 15

H . In paragraph (c)(2), adding the words " a 16
representative sample of " immediately after the words 17

" visits to "

. 18

The additions and revisions read as follows: 19

§ 602.22 Substantive change

. 20

(a) * * * 21

(2) * * * 22Team III

– Accreditation

– Amendatory Language

May 18

- 20 , 2009 meeting

Prepared May 8, 2009 Page 16 (vii) If the agency’s accreditation of an institution 1

enables the institution to see k eligibility to p articipate 2
in title IV HEA programs, the entering into a contract 3
under which an institution or organization not certified to 4
participate in the title IV programs offers more than 25 5
percent of one or more of the accredited institution’s 6
educational progra ms. 7

(viii) For institutions that operate with a main 8

campus . If the agency’s accreditation of an institution 9
enables it to seek eligibility to participate in title IV 10
HEA programs, the establishment of an additional location 11
geographically apart from th e main campus at which the 12
institution offers at least 50 percent of an educational 13

program. 14

(ix) For institutions that operate as a distributed 15
enterprise

. (A) If the agency’s accreditation of the 16
institution enables it to seek eligibility to particip ate 17
in title IV HEA programs, the establishment of an 18
additional location where at least 50 percent of an 19
educational program is offered. The addition of such a 20
location must be approved by the agency in accordance with 21
paragraph (c) of this section unles s the accrediting agency 22Team III

– Accreditation

– Amendatory Language

May 18

- 20 , 2009 meeting

Prepared May 8, 2009 Page 17 determines, and issues a written determination sta ting that 1

the institution has

-- 2

( 1 ) Successfully completed at least one cycle of 3
accreditation of maximum length offered by the agency and 4

one renewal, or has been accredited for a t least ten years; 5

( 2 ) At least three additional locations that the 6
agency has approved; and 7

( 3 ) Met criteria established by the agency indicating 8
sufficient capacity to add additional locations without 9
individual prior approvals, including at a minimum 10
satisfactory evidence of a system to ensure quality across 11
a distributed enterprise that includes

-- 12

( i ) Clearly identified academic control; 13

( ii ) Regular evaluation of the locations; 14

( iii ) Adequate faculty, facilities, resources, and 15

academic and studen t support systems; 16

( iv ) Financial stability; and 17

( v ) Long

- range planning for expansion. 18

(B) The agency’s procedures for approval of an 19
additional location, pursuant to (ix)(A), must require 20
timely reporting to the agency of every additional location 21

est ablished under this approval. 22Team III

– Accreditation

– Amendatory Language

May 18

- 20 , 2009 meeting

Prepared May 8, 2009 Page 18 (C) Each agency determination or redetermination to 1
preapprove an additional location under (ix)(A) must be of 2
limited duration and may not exceed five years. 3
(D) The agency may not preapprove an institution’s 4

addition o f a location under (ix)(A) after the institution 5
undergoes a change in ownership resulting in a change in 6

control as defined in 34 CFR 600.31 until the institution 7
demonstrates that it meets the conditions for the agency to 8
preapprove an additional locatio n described in this 9

paragraph. 10
(x) The acquisition of any other institution or any 11
program or location of another institution. 12
(xi) The addition of a permanent location at a site 13
at which the institution is conducting a teach

- out for 14

students of another institution that has ceased operating 15
before all students have completed their program of study. 16
(3) The agency’s substantive change policy must 17
define when the changes made or proposed by an institution 18
are or would be sufficiently extensive to requir e the 19
agency to conduct a new comprehensive evaluation of that 20

institution. 21
(b) The agency may determine the procedures it uses 22
to grant prior approval of the substantive change. 23Team III

– Accreditation

– Amendatory Language

May 18

- 20 , 2009 meeting

Prepared May 8, 2009 Page 19 However, these procedures must specify an effective date, 1

which is not retr oactive, on which the change is included 2
in the program’s or institution’s accreditation. An agency 3
may designate the date of a change in ownership as the 4
effective date of its approval of that substantive change 5

if the accreditation decision is made with in 30 days of the 6
change in ownership. Except as provided in paragraph (c) 7

of this section, these procedures may, but need not, 8
require a visit by the agency. 9
(c) If the agency’s accreditation of an institution 10
enables the institution to seek eligibility to participate 11
in title IV, HEA programs, the agency’s procedures for the 12
approval of an additional location described in paragraph 13
(a)(2)(viii) of this section must provide for a 14

determination of the institution’s fiscal and 15
administrative capacity to op erate the additional location. 16
In addition, the agency’s procedures must include

-- 17

* * * * * 18

x. Section 602.23 is amended by : 19

A. R evising the paragraph (a) introductory text

. 20
B. Revising paragraph (c)(1). 21

The revisions read as follows: 22

§602.23 O perating procedures all agencies must have

. 23Team III

– Accreditation

– Amendatory Language

May 18

- 20 , 2009 meeting

Prepared May 8, 2009 Page 20 (a) The agency must maintain and make available to 1
the public written materials describing

-- 2

* * * * * 3

(c) * * * 4

( 1 ) Review in a timely, fair, and equitable manner 5
any complaint it receives against an accredited institution 6
or program that is related to the agency’s standards or 7
procedures. The agency may not complete its review and 8
make a decision regarding a complaint unless, in accordance 9
with published procedures, it ensures that the institution 10

o r program has sufficient opportunity to provide a response 11
to the complaint. 12

* * * * * 13

x. Section 602.24 is amended by: 14
A. Redesignating paragraph (c)(3) as new paragraph 15

(d). 16
B. Revising paragraph (c). 17
C. Adding a new paragraph (e) 18

The addition an d revision read as follows: 19
§602.24 Additional procedures certain institutional 20

accreditors must have

. 21

* * * * * 22Team III

– Accreditation

– Amendatory Language

May 18

- 20 , 2009 meeting

Prepared May 8, 2009 Page 21 (c) Teach

- out plans and agreements

. (1) The agency 1
must require an institution it accredits or preaccredits to 2

submit a teach

- out plan to the agency for approval upon the 3
occurrence of any of the following events: 4
(i) The Secretary notifies the agency that the 5
Secretary has initiated an emergency action against an 6
institution, or an action to limit, suspend, or terminate 7
an institution p articipating in any title IV, HEA program , 8

in accordance with the relevant portions of subpart G of 9

part 668. 10
(ii) The agency acts to withdraw, terminate, or 11
suspend the accreditation or preaccreditation of the 12

institution. 13

(iii) The institution notifies the agency that it 14
intends to cease operations entirely or close a location 15
that provides one hundred percent of at least one program. 16
(iv) A State licensing or authorizing a gency notifies 17

the agency that an institution’s license or legal 18

authorization t o provide an educational program has been or 19

will be revoked. 20

(2) The agency must evaluate the teach

- out plan to 21
ensure it provides for the equitable t reatment of students 22
under criteria established by the agency, specifies 23Team III

– Accreditation

– Amendatory Language

May 18

- 20 , 2009 meeting

Prepared May 8, 2009 Page 22 additional costs, if any, and p rovides for notification to 1
the students of any additional costs. 2

(3) If the agency approves a teach

- out plan that 3
includes a program that is accredited by another recognized 4
accrediting agency, it must notify that accrediting agency 5
of its approval. 6

(4) The agency may require an institution it 7
accredits or preaccredits to enter into a teach

- out 8
agreement as part of its teach

- out plan. 9
(5) The agency must require an institution it 10
accredits or preaccredits that enters into a teach

- out 11
agreement, either o n its own or at the request of the 12
agency, to submit that teach

- out agreement for approval. 13

The agency may approve the teach

- out agreement only if the 14
agreement is between institutions that are accredited or 15
preaccredited by a nationally recognized accred iting 16
agency, is consistent with applicable standards and 17

r egulations, and provides for the equitable treatment of 18
students by ensuring that

-- 19

(i) The teach

- out insti t u t i on has the necessary 20
experience, resources, and support services to

-- 21

(A) Provide an educational program that is of 22
acceptable quality and reasonably similar in content, 23Team III

– Accreditation

– Amendatory Language

May 18

- 20 , 2009 meeting

Prepared May 8, 2009 Page 23 structure, and scheduling to that provided by the 1
institution that is ceasing operations, either entirely or 2

at one of its locations; and 3
(B) Remain stable, carry out it s mission, and meet 4
all obligations to existing students; and 5

(ii) The teach

- out institution demonstrates that it 6
can provide students access to the program and services 7
without requiring them to move or travel substantial 8
distances and that it will provi de students with 9
information about additional costs, if any. 10

(d) Closed institution . If an institution the agency 11
accredits or preaccredits closes without a teach

- out plan 12
or agreement, the agency must work with the Department and 13
the appropriate State ag ency, to the extent feasible, to 14
ensure that students are given reasonable opportunities to 15
complete their education without additional charge. 16

(e) Transfer of credit policies . The accrediting 17
agency must confirm, as part of its review for initial 18

accred itation or preaccreditation, or renewal of 19

accreditation, that the institution has t ransfer of credit 20
policies that

-- 21
(1) Are publicly disclosed in accordance with 22

§668.43 (x) ; and 23Team III

– Accreditation

– Amendatory Language

May 18

- 20 , 2009 meeting

Prepared May 8, 2009 Page 24 (2) Include a statement of the criteria established 1
by the institution reg arding the transfer of credit earned 2
at another institution of higher education. 3

x. Section 602.25 is amended to read as follows: 4

§602.25 Due process

. 5
The agency must demonstrate that the procedures it 6
uses throughout the accrediting process satisfy due 7
process. The agency meets this requirement if the agency 8
does the following: 9
(a) Provides adequate written specification of its 10
requirements, including clear standards, for an institution 11
or program to be accredited or preaccredited; 12

(b) Uses procedures that afford an institution or 13
program a reasonable period of time to comply with the 14
agency’s requests for informa tion and documents. 15

(c) Provides written specification of any 16
deficiencies identified at the institution or program 17

examined. 18

(d) Provides suff icient opportunity for a written 19
response by an institution or program regarding any 20
deficiencies identified by the agency, to be considered by 21
the agency within a timeframe determined by the agency, and 22
before any adverse action is taken. 23Team III

– Accreditation

– Amendatory Language

May 18

- 20 , 2009 meeting

Prepared May 8, 2009 Page 25 (e) Notifies th e institution or program in writing of 1
any adverse accrediting action or an action to place the 2
institution or prog ram on probation or show cause. The 3

notice describes the basis for the action. 4
(f) Provides an opportunity, upon written request of 5

an ins titution or program, for the institution or program 6
to appeal any adverse action prior to the action becoming 7

final. 8
(1) The appeal must take place at a hearin g before a 9

decision

- making appeals panel that

-- 10
(i) May not include current members of the age ncy’s 11

decision

- making body that took the initial adverse action. 12
(ii) Is subject to a conflict of interest policy. 13
(2) The agency must recognize the right of the 14
institution or program to employ counsel to represent the 15
institution or program during its appeal, including to make 16
any presentation that the agency permits the institution or 17
program to make on its own during the appeal. 18
(g) The agency notifies the institution or program in 19
writing of the result of its appeal and the basis for that 20

result. 21

(h )(1) The agency must provide for a process, in 22
accordance with written procedures, through which an 23Team III

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Prepared May 8, 2009 Page 26 institution or program may, before the agency reaches a 1

final adverse action decision, seek review of new financial 2
information if all of the following con ditions are met: 3

(i) The financial information was unavailable to the 4
institution or program until after the conclusion of the 5

fact

- finding phase of the action. 6
(ii) The financial information is significant and 7
bears materially on the financial deficienc ies identified 8
by the agency. The criteria of significance and 9
materiality are defined by the agency. 10
(iii) The only remaining deficiency cited by the 11
agency in support of a final adverse action decision is the 12
institution’s or program’s failure to meet an agency 13
standard pertaining to finances. 14
(2) An institution or program may seek the review of 15
new financial information described in paragraph (1) only 16
once and any determination by the agency made with respect 17

to that review does not provide a basis f or an appeal. 18
x. Section 602.26 is amended by: 19
A. Adding a new paragraph (b)(3). 20
B. In paragraph (c), adding a comma after (b)(1), 21
removing " and " before (b)(2), adding a comma after (b)(2), 22
and adding " and (b)(3) " before " of this section "

. 23Team III

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Prepared May 8, 2009 Page 27 C. In paragr aph (d), removing the words " upon 1

request " after the word " public " , the commas after the word 2

" comments " and before the word " that " and the words " if 3

any " after the word " comments "

. 4
D. In paragraph (d), adding the word " official " 5

before the word " comments " and adding after the words " with 6
regard to that decision " a comma and the words " or evidence 7

that the affected institution has been offered the 8
opportunity to provide official comment; " 9

The addition reads as follows: 10

* * * * * 11

(b) * * * 12

(3) A f inal decision to take any other adverse 13
action, as defined by the agency, not listed in paragraph 14

(b)(2). 15
x. Section 602.27 is amended by: 16

A. In the lead

- in sentence adding the paragraph 17
designation of " (a) " immediately before the word " The "

. 18
B. Redesig nating paragraphs (a), (b), (c), and (d) as 19

(1), (2),(3), and (4). 20
C. In newly redesignated paragraph (4), redesignating 21
paragraphs (1) and (2) as paragraphs (i) and (ii). 22Team III

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Prepared May 8, 2009 Page 28 D. In newly redesignated paragraph (i), adding a 1

comma and the words " except as pr ovided in paragraph (5) " 2

after the word " recognition "

. 3

E . In newly redesignated paragraph (a) , adding a new 4

paragraph (5). 5

F . Redesignating paragraphs (e) and (f) as paragraphs 6

(6) and (7). 7

G . Adding a new paragraph (b). 8

The addition s read as follows: 9

§602.27 Other information an agency must provide the 10

Department. 11

(a) * * * 12
(5) Notification that the agency has expanded its 13
scope of recognition to include distance education or 14
correspondence education as provided for in section 15

496 (a)(4)(B)(i)(I) of the HEA. Such an expansion of scope 16
is effective on the date the Department receives the 17

notification. 18
(b) If an agency has a policy regarding notification 19
to an institution or program of contact with the Department 20
in accordance with paragraphs (a)(6) o r (a)(7), it must 21
provide for a case by case review of the circumstances 22
surrounding the contact, and the need for the 23Team III

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Prepared May 8, 2009 Page 29 confidentiality of that contact. Upon a specific request 1
by the Department, the agency must consider that contact 2

confidential. 3

x. S ubpart C is revised to read as follows: 4

Subpart C

-- The Recognition Process 5

APPLICATION AND REVIEW BY DEPARTMENT STAFF 6

§ 602.30 Activities covered by recognition procedures

. 7
Recognition proceedings are administrative actions 8
taken on any of the following m atters: 9
(a) Applications for initial or continued recognition 10

submitted under § 602.31(a). 11
(b) Applications for an expansion of scope submitted 12

under § 602.31(b). 13
(c) Compliance reports submitted under § 602.31(c). 14
(d) Reviews of agencies that have expan ded their 15
scope of recognition by notice, following receipt by the 16
Department of information of an increase in headcount 17

enrollment described in § 602.19(f). 18
(e) Staff analyses identifying areas of non

19
compliance based on a review conducted under § 602.33. 20
(Authority: 20 U.S.C. 1099b) 21

§ 602.31 Agency submissions to the Department

. 22Team III

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Prepared May 8, 2009 Page 30 (a) Applications for recognition or renewal of 1
recognition . An accrediting agency seeking initial or 2
continued recognition must submit a written application to 3

the Secretary. Each accrediting agency must submit an 4
application for continued recognition at least once every 5
five years, or within a shorter time period specified in 6
the final recognition decision. The application must 7

consist of

-- 8

(1) A statement of the agency’s re quested scope of 9
recognition; 10
(2) Evidence, including documentation, that the 11
agency complies with the criteria for recognition listed in 12
subpart B of this part and effectively applies those 13

criteria; and 14
(3) Evidence, including documentation, of ho w an 15
agency that includes or seeks to include distance education 16
or correspondence education in its scope of recognition 17
applies its standards in evaluating programs and 18

institutions it accredits that offer distance education or 19
correspondence education. 20

( b) Applications for expansions of scope . An agency 21
seeking an expansion of scope by application must submit a 22Team III

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Prepared May 8, 2009 Page 31 written application to the Secretary. The application 1

must

-- 2
(1) Specify the scope requested; 3
(2) Include documentation of experience in acco rdance 4

with § 602.12(b); and 5
(3) Provide copies of any relevant standards, 6
policies or procedures developed and applied by the agency 7
and documentation of the application of these standards, 8
policies or procedures. 9

(c) Compliance reports . If an agency i s required to 10
submit a compliance report, it must do so within 30 days 11
following the end of the period for achieving compliance as 12
specified in the decision of the senior Department official 13
or Secretary, as applicable. 14

(d) Review following an increase in headcount 15

enrollment . If an agency that has notified the Secretary 16
in writing of its change in scope to include distance 17
education or correspondence education in accordance with 18

§ 602.27(a)(5) reports an increase in headcount enrollment 19

in accordance with § 602.19(f) for an institution it 20
accredits, or if the Department notifies the agency of such 21
an increase at one of the agency’s accredited institutions, 22
the agency must, within 45 days of reporting the increase 23Team III

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Prepared May 8, 2009 Page 32 or receiving notice of the increase from the Department, as 1
applicable, submit a report explaining

-- 2
(1) How the agency evaluates the capacity of the 3
institutions or programs it accredits to accommodate 4
significant growth in enrollment and to maintain 5
educational quality; 6
(2) The specific circums tances regarding the growth 7
at the institution(s) or programs(s) that triggered the 8
review and the results of any evaluation conducted by the 9

agency; and 10
(3) Any other information that the agency deems 11
appropriate to demonstrate the effective application of the 12
criteria for recognition or that the Department may 13
require. 14

(e) Consent to sharing of information . By submitting 15
an application for recognition, the agency authorizes 16
Department staff throughout the application process and 17
during any period of re cognition

-- 18

(1) To observe its site visits to one or more of the 19
institutions or programs it accredits or preaccredits, on 20

an announced or unannounced basis; 21
(2) To visit locations where agency activities such 22
as training, review and evaluation panel me etings, and 23Team III

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Prepared May 8, 2009 Page 33 decision meetings take place, on an announced or 1

unannounced basis; 2
(3) To obtain copies of all documents the staff deems 3
necessary to complete its review of the agency; and 4
(4) To gain access to agency records, personnel and 5

facilities. 6

(f ) Public availability of agency records obtained by 7

the Department

. (1) The Secretary’s processing and 8
decision making on requests for public disclosure of agency 9
materials reviewed under this part are governed by the 10

Freedom of Information Act, 5 U.S.C. §552; the Trade 11
Secrets Act, 18 U.S.C. §1905; the Privacy Act of 1974, as 12
amended, 5 U.S.C §552a; the Federal Advisory Committee Act, 13
5 U.S.C. Appdx. 1, and all other applicable laws. In 14
recognition proceedings, agencies 15

may
-- 16

(i) Redact information th at would identify 17

individuals or institutions that is not essential to the 18
Department’s review of the agency; 19
(ii) Make a good faith effort to designate all 20
business information within agency submissions that the 21
agency believes would be exempt from discl osure under 22
exemption 4 of the Freedom of Information Act (FOIA), 5 23Team III

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Prepared May 8, 2009 Page 34 U.S.C. § 552(b)(4). A blanket designation of all 1
information contained within a submission, or of a category 2
of documents, as meeting this exemption will not be 3
considered a good faith eff ort and will be disregarded; 4
(iii) Identify any other material the agency believes 5
would be exempt from public disclosure under FOIA, the 6
factual basis for the request and any legal basis the 7
agency has identified for withholding the document from 8

disclos ure; and 9
(iv) Ensure documents submitted are only those 10
required for Department review or as requested by 11
Department officials. 12
(2) The Secretary processes FOIA requests in 13
accordance with 34 CFR part 5 and makes all documents 14
provided to the Advisory Co mmittee available to the public. 15
(Authority: 20 U.S.C. 1099b) 16

§ 602.32 Procedures for Department review of applications 17
for recognition or for change in scope, compliance reports, 18

and increases in enrollment

. 19
(a) After receipt of an agency’s application for 20
initial or continued recognition, or change in scope, or an 21
agency’s compliance report, or an agency’s report submitted 22

under § 602.31(d), Department staff publishes a notice of 23Team III

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Prepared May 8, 2009 Page 35 the agency’s application or report in the Federal Register 1
inviting the public to comment on the agency’s compliance 2
with the criteria for recognition and establishing a 3
deadline for receipt of public comment. 4

(b) The Department staff analyzes the agency’s 5
application for initial or renewal of recognition, 6
compliance report, or report submitted under § 602.31(d) to 7
determine whether the agency satisfies the criteria for 8
recognition, taking into account all available relevant 9
information concerning the compliance of the agency with 10
those criteria and in the agency’s effectivenes s in 11
applying the criteria. The analysis of an application for 12
recognition and, as appropriate, of a report required under 13

§ 602.31(c) or (d), includes

-- 14

(1) Observations from site visit(s), on an announced 15
or unannounced basis, to the agency or to a loca tion where 16
agency activities such as training, review and evaluation 17
panel meetings, and decision meetings take place and to one 18
or more of the institutions or programs it accredits or 19
preaccredits; 20
(2) Review of the public comments and other third

21

party information the Department staff receives by the 22
established deadline, and the agency’s responses to the 23Team III

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Prepared May 8, 2009 Page 36 third

- party comments, as appropriate, as well as any other 1
information Department staff assembles for purposes of 2
evaluating the agency under this part ; and 3
(3) Review of complaints or legal actions involving 4

the agency. 5
(c) The Department staff analyzes the materials 6
submitted in support of an application for expansion of 7
scope to ensure that the agency has the requisite 8
experience, policies that comp ly with subpart B, capacity 9

and performance record to support the request. 10
(d) Department staff’s evaluation of an agency may 11
also include a review of information directly related to 12
institutions or programs accredited or preaccredited by the 13

agency relat ive to their compliance with the agency’s 14

standards, the effectiveness of the standards, and the 15
agency’s application of those standards. 16
(e) If, at any point in its evaluation of an agency 17
seeking initial recognition, Department staff determines 18

that the agency fails to demonstrate compliance with the 19
basic eligibility requirements in §§ 602.10 through 602.13, 20

the staff

-- 21Team III

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Prepared May 8, 2009 Page 37 (1) Returns the agency’s application and provides the 1
agency with an explanation of the deficiencies that caused 2

staff to take that act ion; and 3
(2) Recommends that the agency withdraw its 4
application and reapply when the agency can demonstrate 5
compliance. 6
(f) Except with respect to an application that has 7
been returned or is withdrawn under paragraph (e) of this 8
section, when Department staff completes its evaluation of 9

the agency, the staff

-- 10
(1) Prepares a written draft analysis of the agency; 11
(2) Sends the draft analysis including any identified 12

areas of non

- compliance and a proposed recognition 13
recommendation, and all supporting d ocumentation, including 14

all third

- party comments the Department received by the 15
established deadline, to the agency; 16
(3) Invites the agency to provide a written response 17
to the draft analysis and proposed recognition 18

recommendation and third

- party commen ts, specifying a 19
deadline that provides at least 30 days for the agency’s 20

response; 21
(4) Reviews the response to the draft analysis the 22
agency submits, if any, and prepares the written final 23Team III

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Prepared May 8, 2009 Page 38 analysis. The final analysis includes a recognition 1

recommendat ion to the senior Department official, as the 2
Department staff deems appropriate, including, but not 3
limited to, a recommendation to approve, deny, limit, 4
suspend, or terminate recognition, require the submission 5
of a compliance report and continue recogni tion pending a 6
final decision on compliance, approve or deny a request for 7
expansion of scope, or revise or affirm the scope of the 8

agency; and 9
(5) Provides to the agency, no later than seven days 10
before the Advisory Committee meeting, the final staff 11

ana lysis and any other available information provided to 12
the Advisory Committee under § 602.34(c). 13
(g) The agency may request that the Advisory 14
Committee defer acting on an application at that Advisory 15
Committee meeting if Department staff fails to provide th e 16
agency with the materials described, and within the 17
timeframes provided, in paragraphs (f)(3) and (f)(5) of 18
this section. If the Department staff’s failure to send 19

the materials in accordance with the timeframe described in 20

paragraph (f)(3) or (f)(5) of this section is due to the 21
failure of the agency to submit reports to the Department, 22
other information the Secretary requested, or its response 23Team III

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Prepared May 8, 2009 Page 39 to the draft analysis, by the deadline established by the 1
Secretary, the agency forfeits its right to request a 2
deferral of its application. 3
(Authority: 20 U.S.C. 1099b) 4

§ 602.33 Procedures for review of agencies during the 5
period of recognition

. 6
(a) Department staff may review the compliance of a 7
recognized agency with the criteria for recognition at any 8

time

- - 9
(1) At the request of the Advisory Committee; or 10
(2) Based on any information that, as determined by 11
Department staff, appears credible and raises issues 12
relevant to recognition. 13
(b) The review may include, but need not be limited 14
to, any of the activ ities described in §602.32(b) and (d). 15

(c) If, in the course of the review, and after 16
provision to the agency of the documentation concerning the 17
inquiry and consultation with the agency, Department staff 18
notes that one or more deficiencies may exist in t he 19
agency’s compliance with the criteria for recognition or in 20
the agency’s effective application of those criteria, it

-- 21
(1) Prepares a written draft analysis of the agency’s 22
compliance with the criteria of concern. The analysis 23Team III

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Prepared May 8, 2009 Page 40 reflects the results of the review, and includes a 1
recommendation regarding what action to take with respect 2
to recognition. Possible recommendations include, but are 3
not limited to, a recommendation to limit, suspend, or 4
terminate recognition, or require the submission of a 5

co mpliance report and to continue recognition pending a 6
final decision on compliance; 7
(2) Sends the draft analysis including any identified 8

areas of non

- compliance, and a proposed recognition 9
recommendation, and all support ing documentation to the 10

agency; and 11
(3) Invites the agency to provide a written response 12
to the draft analysis and proposed recognition 13
recommendation, specifying a deadline that provides at 14

least 30 days for the agency’s response. 15
(d) If, after review of the agency’s response to the 16
draft analysis, Department staff concludes that the agency 17
has demonstrated compliance with the criteria for 18
recognition, the staff notifies the agency in writing of 19
the results of the review. If the review was requested by 20
the Advisory Committee, staff a lso provides the Advisory 21

Committee with the results of the review. 22Team III

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Prepared May 8, 2009 Page 41 (e) If, after review of the agency’s response to the 1
draft analysis, Department staff concludes that the agency 2
has not demonstrated compliance, the staff

-- 3
(1) Notifies the agency that the draft analysis will 4
be finalized for presentation to the Advisory Committee; 5

(2) Publishes a notice in the Federal Register 6
including, if practicable, an invitation to the public to 7
comment on the agency’s compliance with the criteria in 8
question and establishing a deadline for receipt of public 9

comment; 10
(3) Provides the agency with a copy of all public 11
comments received and, if practicable, invites a written 12

response from the agency; 13
(4) Finalizes the staff analysis as necessary to 14

reflect its revie w of any agency response and any public 15

comment received; and 16
(5) Provides to the agency, no later than seven days 17
before the Advisory Committee meeting, the final staff 18
analysis and a recognition recommendation and any other 19
information provided to the A dvisory Committee under 20

§ 602.34(c )

. 21
(f) The Advisory Committee reviews the matter in 22

accordance with § 602.34. 23Team III

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Prepared May 8, 2009 Page 42 (Authority: 20 U.S.C. 1099b) 1

REVIEW BY THE NATIONAL ADVISORY COMMITTEE ON INSTITUTIONAL 2

QUALITY AND INTEGRITY 3

§ 602.34 Advisory Committee meetin gs
. 4

(a) Department staff submits a proposed schedule to 5
the Chairperson of the Advisory Committee based on 6
anticipated completion of staff analyses. 7
(b) The Chairperson of the Advisory Committee 8
establishes an agenda for the next meeting and, in 9

accord ance with the Federal Advisory Committee Act, 10
presents it to the Designated Federal Official for 11

approval. 12
(c) Before the Advisory Committee meeting, Department 13
staff provides the Advisory Committee with

-- 14
(1) The agency’s application for recognition o r for 15
expansion of scope, the agency’s compliance report, or the 16
agency’s report submitted under § 602.31(d), and supporting 17

documentation; 18
(2) The final Department staff analysis of the agency 19
developed in accordance with § 602.32 or § 602.33, and any 20

suppo rting documentation; 21

(3) At the request of the agency, the agency’s 22
response to the draft staff analysis; 23Team III

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Prepared May 8, 2009 Page 43 (4) Any written third

- party comments the Department 1
received about the agency on or before the established 2

deadline; 3
(5) Any agency response to thi rd

- party comments; and 4
(6) Any other information Department staff relied 5

up on in developing its analysis. 6
(d) At least 30 days before the Advisory Committee 7
meeting, the Department publishes a notice of the meeting 8

in the Federal Register inviting inte rested parties, 9
including those who submitted third

- party comments 10
concerning the agency’s compliance with the criteria for 11
recognition, to make oral presentations before the Advisory 12

Committee. 13
(e) The Advisory Committee considers the materials 14
provided under paragraph (c) in a public meeting and 15
invites Department staff, the agency, and other interested 16
parties to make oral presentations during the meeting. A 17
transcript is made of all Advisory Committee meetings. 18
(f) The written motion adopted by the A dvisory 19
Committee regarding each agency’s recognition will be made 20
available during the Advisory Committee meeting. The 21
Department will provide each agency, upon request, with a 22
copy of the motion on recognition at the meeting. Each 23Team III

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Prepared May 8, 2009 Page 44 agency that was revie wed will be sent an electronic copy of 1
the motion relative to that agency as soon as practicable 2
after the meeting. 3
(g) After each meeting of the Advisory Committee at 4
which a review of agencies occurs, the Advisory Committee 5
forwards to the senior Depar tment official its 6
recommendation with respect to each agency, which may 7

include , but is not limited to, a recommendation to 8
approve, deny, limit, suspend, or terminate recognition, to 9
grant or deny a request for expansion of scope, to revise 10

or affirm the scope of the agency, or to require the agency 11
to submit a compliance report and to continue recognition 12
pending a final decision on compliance

. 13
(Authority: 20 U.S.C. 1099b) 14

§ 602.35 Responding to the Advisory Committee’s 15

recommendation

. 16

(a) Within ten d ays following the Advisory Committee 17
meeting, the agency and Department staff may submit written 18
comments to the senior Department official on the Advisory 19
Committee’s recommendation. The agency must simultaneously 20
submit a copy of its written comments, i f any, to 21
Department staff. Department staff must simultaneously 22Team III

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Prepared May 8, 2009 Page 45 submit a copy of its written comments, if any, to the 1

agency. 2

(b) Comments must be limited to

-- 3
(1) Any Advisory Committee recommendation that the 4
agency or Department staff believes is no t supported by the 5

record; 6
(2) Any incomplete Advisory Committee recommendation 7
based on the agency’s application; and 8
(3) The inclusion of any recommendation or draft 9
proposed decision for the senior Department official’s 10

consideration. 11

(c)(1) Neither the Department staff nor the agency 12
may submit additional documentary evidence with its 13
comments unless the Advisory Committee’s recognition 14
recommendation proposes finding the agency noncompliant 15
with, or ineffective in its application of , a criterion or 16
criteria for recognition not identified in the final 17
Department staff analysis provided to the Advisory 18

Committee. 19
(2) Within ten days of receipt by the Department 20
staff of an agency’s comments or new evidence, if 21
applicable, or of receipt by the agency o f the Department 22

staff’s comments, Department staff, the agency, or both, as 23Team III

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Prepared May 8, 2009 Page 46 applicable, may submit a response to the senior Department 1
official. Simultaneously with submission, the agency must 2
provide a copy of any response to the Department staff. 3

Simu ltaneously with submission, Department staff must 4
provide a copy of any response to the agency. 5
(Authority: 20 U.S.C. 1099b) 6

REVIEW AND DECISION BY THE SENIOR DEPARTMENT OFFICIAL 7
§602.36 Senior Department official’s decision

. 8
(a) The senior Department official makes a decision 9
regarding recognition of an agency based on the record 10
compiled under § § 602.32, 602.33, 602.34 , and 602.35 11
including, as applicable, the following: 12
(1) The materials provided to the Advisory Committee 13

under §602.34(c); 14

(2) The t ranscript of the Advisory Committee meeting; 15
(3) The recommendation of the Advisory Committee; 16
(4) Written comments and responses submitted under 17

§602.35; 18

(5) New evidence submitted in accordance with 19

§602.35(c)(1); 20

(6) A communication from the Secreta ry referring an 21
issue to the senior Department official’s consideration 22

under §602.37(e). 23Team III

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Prepared May 8, 2009 Page 47 (b) In the event that statutory authority or 1
appropriations for the Advisory Committee ends, or there 2
are fewer duly appointed Advisory Committee members than 3

needed to constitute a quorum, and there are serious 4
concerns about an agency’s compliance with subpart B that 5
require prompt attention, the senior Department official 6
may make a decision in a recognition proceeding based on 7
the record compiled under §602.32 or §602.33, after 8
providing the agency with an opportunity to respond to the 9
final staff analysis. Any decision made by the senior 10
Department official absent a recommendation from the 11
Advisory Committee may be appealed to the Secretary as 12
provided in §602.37

. 13
(c) Following consideration of an agency’s 14
recognition under this section, the senior Department 15
official issues a recognition decision. 16
(d) Except with respect to decisions made under 17
paragraphs (f) or (g) of this section and matters referred 18

to the s enior Department official under § 602.37(e) or (f), 19
the senior Department official notifies the agency in 20
writing of the senior Department official’s decision 21
regarding the agency’s recognition within 90 days of the 22Team III

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Prepared May 8, 2009 Page 48 Advisory Committee meeting or conclusion of the review 1

under paragraph (b)

. 2
(e) The senior Department official’s decision may 3
include, but is not limited to, approving, denying, 4
limiting, suspending, or terminating recognition, granting 5
or denying an application for an expansion of scope, 6

r evising or affirming the scope of the agency, or 7
continuing recognition pending submission and review of a 8
compliance report under §§ 602.32 and 602.34, and review of 9
the report by the senior Department official under this 10

section

. 11
(1)(i) The senior Depart ment official approves 12
recognition if the agency complies with the criteria for 13
recognition listed in subpart B of this part and if the 14
agency effectively applies those criteria. 15
(ii) If the senior Department official approves 16
recognition, the recognition decision defines the scope of 17
recognition and the recognition period. The recognition 18
period does not exceed five years, including any time 19
during which recognition was continued to permit submission 20
and review of a compliance report. 21
(iii) If the scope or period of recognition is less 22
than that requested by the agency, the senior Department 23Team III

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Prepared May 8, 2009 Page 49 official explains the reasons for approving a lesser scope 1
or recognition period. 2
(2)(i) Except as provided in paragraph (e)(3), if the 3
agency either fails to comp ly with the criteria for 4
recognition listed in subpart B of this part, or to apply 5
those criteria effectively, the senior Department official 6
denies, limits, suspends, or terminates recognition. 7
(ii) If the senior Department official denies, 8
limits, suspe nds, or terminates recognition, the senior 9
Department official specifies the reasons for this 10
decision, including all criteria the agency fails to meet 11
and all criteria the agency has failed to apply 12
effectively. 13
(3)(i) Except as provided in paragraph (ii ), if a 14
recognized agency fails to demonstrate compliance with or 15
effective application of a criterion or criteria , but the 16
senior Department official concludes that the agency will 17
demonstrate or achieve compliance with the criteria for 18
recognition and ef fective application of those criteria 19

within 12 months or less, the senior Department official 20
may continue the agency’s recognition, pending submission 21
by the agency of a compliance report, review of the report 22

under §§ 602.32 and 602.34, and review of the report by the 23Team III

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Prepared May 8, 2009 Page 50 senior Department official under this section. In such a 1
case, the senior Department official specifies the criteria 2
the compliance report must address, and a time period, not 3

longer than 12 months, during which the agency must achieve 4

comp liance and effectively apply the criteria. The 5
compliance report documenting compliance and effective 6
application of criteria is due not later than 30 days after 7
the end of the period specified in the senior Department 8

official’s decision. 9

(ii) If the r ecord includes a compliance report, and 10
the senior Department official determines that an agency 11
has not complied with the criteria for recognition, or has 12
not effectively applied those criteria, during the time 13
period specified by the senior Department of ficial in 14
accordance with paragraph (3)(i), the senior Department 15
official denies, limits, suspends, or terminates 16
recognition, except, in extraordinary circumstances, upon a 17
showing of good cause for an extension of time as 18
determined by the senior Depart ment official and detailed 19
in the senior Department official’s decision. If the 20
senior Department official determines good cause for an 21
extension has been shown, the senior Department official 22Team III

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Prepared May 8, 2009 Page 51 specifies the length of the extension and what the agency 1

must do during it to merit a renewal of recognition. 2
(f) If the senior Department official determines, 3
based on the record, that a decision to deny, limit, 4
suspend, or terminate an agency’s recognition may be 5
warranted based on a finding that the agency is 6

no ncompliant with, or ineffective in its application of, a 7
criterion or criteria of recognition not identified earlier 8
in the proceedings as an area of noncompliance, the senior 9
Department official provides

-- 10
(1) The agency with an opportunity to submit a 11

w ritten response and documentary evidence addressing the 12
finding; and 13
(2) The staff with an opportunity to present its 14
analysis in writing. 15
(g) If relevant information pertaining to an agency’s 16
compliance with recognition criteria, but not contained in 17

th e record, comes to the senior Department official’s 18
attention while a decision regarding the agency’s 19
recognition is pending before the senior Department 20
official, and if the senior Department official concludes 21
the recognition decision should not be made without 22Team III

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Prepared May 8, 2009 Page 52 consideration of the information, the senior Department 1

official either

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(1)(i) Does not make a decision regarding recognition 3

of the agency; and 4
(ii) Refers the matter to Department staff for review 5
and analysis under §§ 602.32 or 602.33, as app ropriate, and 6
consideration by the Advisory Committee under § 602.34; or 7
(2)(i) Provides the information to the agency and 8

Department staff; 9
(ii) Permits the agency to respond to the senior 10
Department official and the Department staff in writing, 11

and to i nclude additional evidence relevant to the issue, 12
and specifies a deadline; 13
(iii) Provides Department staff with an opportunity 14
to respond in writing to the agency’s submission under 15
paragraph (ii), specifying a deadline; and 16

(iv) Issues a recognition de cision based on the 17
record described in paragraph (a), as supplemented by the 18
information provided under this paragraph. 19
(h) No agency may submit information to the senior 20
Department official, or ask others to submit information on 21
its behalf, for purpose s of invoking paragraph (g). 22Team III

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Prepared May 8, 2009 Page 53 (i) If the senior Department official does not reach 1
a final decision to approve, deny, limit, suspend, or 2
terminate an agency’s recognition before the expiration of 3
its recognition period, the senior Department official 4

autom atically extends the recognition period until a final 5

decision is reached. 6
(j) Unless appealed in accordance with §602.37, the 7
senior Department official’s decision is the final decision 8

of the Secretary. 9
(Authority: 20 U.S.C. 1099b) 10

APPEAL RIGHTS AND PR OCEDURES 11
§602.37 Appealing the senior Department official’s 12
decision to the Secretary

. 13
(a) The agency may appeal the senior Department 14
official’s decision to the Secretary. Such appeal stays 15
the decision of the senior Department official until final 16

di sposition of the appeal. If an agency wishes to appeal, 17

the agency must

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(1) Notify the Secretary and the senior Department 19
official in writing of its intent to appeal the decision of 20
the senior Department official, no later than ten days 21
after receipt of the decision; 22Team III

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Prepared May 8, 2009 Page 54 (2) Submit its appeal to the Secretary in writing no 1
later than 30 days after receipt of the decision; and 2
(3) Provide the senior Department official with a 3
copy of the appeal at the same time it submits the appeal 4

to the Secretary. 5

(b) The senior Department official may file a written 6
response to the appeal. To do so, the senior Department 7

official must

-- 8
(1) Submit a response to the Secretary no later than 9
30 days after receipt of a copy of the appeal; and 10
(2) Provide the agen cy with a copy of the senior 11
Department official’s response at the same time it is 12
submitted to the Secretary. 13
(c) Neither the agency nor the senior Department 14
official may include in its submission any new evidence it 15
did not submit previously in the pro ceeding. 16
(d) On appeal, the Secretary makes a recognition 17

decision , as described in § 602.36(e ). If the decision 18
requires a compliance report, the report is due within 30 19
days after the end of the period specified in the 20
Secretary’s decision. The Secreta ry renders a final 21
decision after taking into account the senior Department 22
official’s decision, the agency’s written submissions on 23Team III

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Prepared May 8, 2009 Page 55 appeal, the senior Department official’s response to the 1
appeal, if any, and the entire record before the senior 2

Department official. The Secretary notifies the agency in 3
writing of the Secretary’s decision regarding the agency’s 4
recognition. 5
(e) The Secretary may determine, based on the record, 6
that a decision to deny, limit, suspend or terminate an 7
agency’s recognition may be warranted based on a finding 8
that the agency is noncompliant with, or ineffective in its 9
application with respect to, a criterion or criteria for 10
recognition not identified as an area of noncompliance 11
earlier in the proceedings. In that case, the Secr etary, 12
without further consideration of the appeal, refers the 13
matter to the senior Department official for consideration 14

of the issue under § 602.36(f). After the senior Department 15
official makes a decision, the agency may, if desired, 16
appeal that decisio n to the Secretary. 17
(f) If relevant information pertaining to an agency’s 18
compliance with recognition criteria, but not contained in 19
the record, comes to the Secretary’s attention while a 20
decision regarding the agency’s recognition is pending 21

before the Secretary, and if the Secretary concludes the 22Team III

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Prepared May 8, 2009 Page 56 recognition decision should not be made without 1
consideration of the information, the Secretary either

-- 2
(1)(i) Does not make a decision regarding recognition 3

of the agency; and 4
(ii) Refers the matter to Depa rtment staff for review 5
and analysis under §§ 602.32 or 602.33, as appropriate, and 6
review by the Advisory Committee under § 602.34; and 7
consideration by the senior Department official under 8

§ 602.36; or 9
(2)(i) Provides the information to the agency and the 10
senior Department official; 11
(ii) Permits the agency to respond to the Secretary 12
and the senior Department official in writing, and to 13

include additional evidence relevant to the issue, and 14
specifies a deadline; 15
(iii) Provides the senior Department offici al with an 16
opportunity to respond in writing to the agency’s 17
submission under paragraph (ii), specifying a deadline; and 18
(iv) Issues a recognition decision based on all the 19
materials described in paragraphs (d) and (f) of this 20

section. 21Team III

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Prepared May 8, 2009 Page 57 (g) No agency may submit information to the 1
Secretary, or ask others to submit information on its 2
behalf, for purposes of invoking paragraph (f). 3
(h) If the Secretary does not reach a final decision 4
on appeal to approve, deny, limit, suspend, or terminate an 5

agency’s recog nition before the expiration of its 6
recognition period, the Secretary automatically extends the 7
recognition period until a final decision is reached. 8
(Authority: 20 U.S.C. 1099b) 9

§ 602.38 Contesting the Secretary’s final decision to deny, 10
limit, suspend, or terminate an agency’s recognition

. 11
An agency may contest the Secretary’s decision under 12
this part in the Federal courts as a final decision in 13
accordance with applicable Federal law. Unless otherwise 14
directed by the court, a decision of the Secretary to deny, 15
limit, suspend, or terminate the agency’s recognition is 16
not stayed during an appeal in the Federal courts. 17
(Authority: 20 U.S.C. 1099b) 18
x. Subpart D is removed in its entirety. 19

x . Curren t subpart E is redesignated as subpart D. 20