Office of Postsecondary Education - U.S. Department of Education

66860 Federal Register / Vol. 75, No. 209 / Friday, October 29, 2010 / Rules and RegulationsWReier-Aviles on DSKGBLS3C1PROD with RULES2would have no choice but to pass thatcost on to students.Discussion: We do not agree that§ 600.9 of these final regulations willresult in an unfunded mandate by theFederal Government, since many Stateswill already be compliant and optionsare available that should permit otherStates to come into compliance withonly minimal changes in procedures orrequirements if they want to provideacceptable State authorizations forinstitutions. The regulations alsoinclude a process for an institution torequest additional time to becomecompliant. Furthermore, if a State isunwilling to become compliant with§ 600.9, there is no requirement that itdo so. We also do not agree that Stateswill see coming into compliance with§ 600.9 as a revenue-generatingopportunity, since any required changesare likely to be minimal.Changes: None.ImplementationComment: Some commenters believedthat the proposed regulations areambiguous in meaning and applicationor are vague in identifying which Statepolicies are sufficient. For example, oneState higher education official suggestedthat proposed § 600.9 should beamended to differentiate amongauthorities to operate arising fromadministrative authorization of privateinstitutions from legislation and fromconstitutional provisions assigningresponsibility to operate publicinstitutions. The commenter believedthat proposed § 600.9 obfuscated thevarious means of establishing Stateauthorization and the fundamental rolesof State legislatures and Stateconstitutions and recommended thatthese means of authorization and rolesof State entities should be clarified.Several commenters questioned whatauthorizing an institution to offerpostsecondary programs entails. A fewcommenters pointed out that there is awide array of State approval methodsand many institutions were foundedbefore the creation of State licensingagencies. An association representingState higher education officials urgedthat ample discretionary authorityexplicitly be left to the States. Onecommenter indicated that proposed§ 600.9 failed to address when morethan one State entity is responsible fora portion of the oversight in Stateswhere dual or multiple certifications arerequired. Another commenter believedthat proposed § 600.9 did notadequately address the affect aninstitution’s compliance with proposed§ 600.9 would have if one of twodifferent State approvals lapsed andboth were necessary to be authorized tooperate in the State or if the State ceasedto have a process for handlingcomplaints but the institutionscontinued to be licensed to offerpostsecondary education. Somecommenters asked whether specificState regulatory frameworks would meetthe provisions of the proposedregulations. For example, onecommenter believed that, under Statelaw and practice in the commenter’sState, the private institutions in theState already met the requirements inproposed § 600.9 that the commenterbelieved included: (1) The institutionbeing authorized by a State through acharter, license, approval, or otherdocument issued by an appropriateState government agency or State entity;(2) the institution being authorizedspecifically as an educationalinstitution, not merely as a business oran eleemosynary organization; (3) theinstitution’s authorization being subjectto adverse action by the State; and (4)the State having a process to review andappropriately act on complaintsconcerning an institution. Thecommenter noted that all postsecondaryinstitutions in the State must eitherhave a ‘‘universal charter’’ awarded bythe legislature or be approved to offerpostsecondary programs. Thecommenter noted that these institutionsare authorized as educationalinstitutions, not as businesses. Inanother example, a commenter fromanother State believed that current lawin the commenter’s State addresses andcovers many of the requirementsoutlined in proposed § 600.9. Thecommenter noted that many of the Statelaws are enforced by the State’sAttorney General and attempt to protectindividuals from fraud and abuse in theState’s system of higher education.However, the commenter believed thatit remained unclear whether the Statewould be required to create an oversightboard for independent institutions likethe commenter’s institution or would besubject to State licensure requirementsvia the State licensure agency. Thecommenter believed that either optionwould erode the autonomy of thecommenter’s institution and add layersof bureaucracy to address issuescurrently covered by State and Federallaws.One commenter suggested thatproposed § 600.9(a)(1) be amended toprovide that authorization may be basedon other documents issued by anappropriate State government agencyand delete the reference to ‘‘state entity.’’The commenter believed that thedocuments would affirm or convey theVerDate Mar2010 14:10 Oct 28, 2010 Jkt 223001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\29OCR2.SGM 29OCR2authority to the institution to operateeducational programs beyond secondaryeducation by duly enacted Statelegislation establishing an institutionand defining its mission to provide sucheducational programs or by dulyadopted State constitutional provisionsassigning authority to operateinstitutions offering such educationalprograms.Some commenters questionedwhether there were any factors that aState may not consider when grantinglegal authorization. One commenterrequested confirmation that under theproposed regulations authorization doesnot typically include State regulation ofan institution’s operations nor does itinclude continual oversight. A fewcommenters expressed concernregarding the involvement of the Statesin authorization and that a State’s rolemay extend into defining, for example,curriculum, teaching methods, subjectmatter content, faculty qualifications,and learning outcomes. One commenterwas concerned that proposed § 600.9would create fiscal constraints on aninstitution due to, for example,additional reporting requirements orwould impose homogeneity uponinstitutions that would compromisetheir unique missions. One commenterstated that the Department does nothave the authority to review issues ofacademic freedom or curriculumcontent.One commenter wanted assurancesthat the Department does not intend touse the proposed regulations tostrengthen State oversight of collegesbeyond current practices. Onecommenter was concerned that Statescould exercise greater and moreintrusive oversight of private colleges.One commenter suggested that theDepartment grandfather all institutionscurrently operating under a State’sregulatory authority without adetermination of its adequacy. Anotherindicated that private colleges anduniversities operating under a Stateapprovedcharter issued prior to 1972are already subject to State regulation,even as they are exempt from Statelicensing. One commenter believed thatthe Department should accept Statelaws and regulations that can bereasonably interpreted as meeting theregulatory requirements.Discussion: We agree with thecommenters who were concerned thatproposed § 600.9 may be viewed asambiguous in describing a minimalstandard for establishing State legalauthorization. We agree, in principle,with the State higher education officialwho suggested that proposed § 600.9should be amended to differentiate the