Protection of Pupil Rights

SUMMARY: The Secretary proposes regulations to implement the Pupil

Protection Rights Amendments of 1994 (PPRA) to the Protection of Pupil

Rights provision contained in the General Education Provisions Act

(GEPA). PPRA was amended in the Goals 2000: Educate America Act (Pub.

L. 103-227). The proposed regulations rename and revise the current

regulations (34 CFR part 98 ``Student Rights in Research, Experimental

Activities, and Testing'') for the Protection of Pupil Rights to

implement these statutory changes and to make other changes that are

necessary for proper program operation.

DATES: Comments must be received on or before October 27, 1995.

ADDRESSES: All comments concerning these proposed regulations should be

addressed to LeRoy Rooker, U.S. Department of Education, 600

Independence Avenue SW., room 1366, Washington, DC 20202-4605. Comments

may also be sent through Internet to ``PPRA--C[email protected].''

A copy of any comments that concern information collection

requirements should also be sent to the Office of Management and Budget

at the address listed in the Paperwork Reduction Act of 1980 section of

this preamble.

FOR FURTHER INFORMATION CONTACT: Ellen Campbell, U.S. Department of

Education, 600 Independence Avenue, SW., room 1366, Washington, DC

20202-4605. Telephone: (202) 260-3887. Individuals who use a

telecommunications device for the deaf (TDD) may call the Federal

Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8

p.m., Eastern time, Monday through Friday.

SUPPLEMENTARY INFORMATION: These proposed regulations have been

reviewed and revised in accordance with the Department's ``Principles

for Regulating,'' which were developed to ensure that the Department

regulates in the most flexible, most equitable, and least burdensome

way possible. These principles advance the regulatory reinvention and

customer service objectives of the Administration's National

Performance Review II and are essential to an effective partnership

with states and localities. The Secretary proposes these regulations

because he believes they are necessary to implement the law and give

the greatest flexibility to local governments and schools. In addition,

the regulations minimize burden while retaining parents' and students'

rights.

The Secretary interprets the Protection of Pupil Rights provision,

as amended, contained in section 445 of the General Education

Provisions Act (GEPA) to provide parents with the right to have access

to surveys, analyses, or evaluations (surveys) administered by a State

educational agency (SEA), local educational agency (LEA), or other

recipient that asks a student to reveal information concerning the

areas specified in section 445(b) of GEPA. In addition, parents or the

student, if a student is an adult or an emancipated minor, must consent

before a student is required to submit to a survey that asks a student

to reveal information concerning these areas. Finally, parents or the

student, if a student is an adult or an emancipated minor, must be

notified of these rights and may file a complaint for alleged

violations of these rights.

Summary of Major Provisions

The following is a summary of the regulatory provisions the

Secretary proposes as necessary to implement the statute, such as

interpretations of statutory text or standards and procedures for the

operation of the program. The summary does not address provisions that

merely restate statutory language. The Secretary is not authorized to

change statutory requirements. Commenters are requested to direct their

comments to the regulatory provisions that would implement the statute.

Section 98.1 Applicable Program

The Protection of Pupil Rights provision contained in GEPA applies

to any program that is an ``applicable program'' under section

400(c)(1) of GEPA. Under this section the term ``applicable program''

means any program for which the Secretary or the Department has

administrative responsibility as provided by law or by delegation of

authority pursuant to law. The term includes each program for which the

Secretary or the Department has administrative responsibility under the

Department of Education Organization Act (DEOA) or under Federal law

effective after May 4, 1980.

Section 98.2 Purpose

The Secretary interprets section 445 of GEPA to provide four

general rights: (1) Parental right of access to certain surveys and the

instructional material used in connection with these surveys of a

student; (2) parental or student right to consent before a student is

required to submit to certain surveys; (3) parental or student right to

file a complaint for alleged violations of their rights under the law;

and (4) parental or student right to receive effective notice of these

rights. The Secretary would implement each of these rights in the

proposed regulations.

Section 98.3 Definitions

The Secretary proposes to define ``recipient'' to include (1) a

contractor who receives financial assistance directly from the

Department to carry out the project and (2) the Department. This

definition clarifies that any survey that the Department directly

contracts for or carries out itself would be subject to these

regulations.

The Secretary proposes not to define the term ``survey'' because he

believes the term is self-explanatory. The Secretary would welcome

comment on whether the terms ``survey, analysis, or evaluation'' as

used in section 445 of GEPA should be defined in regulations.

Sections 98.10, 98.20 Access and Consent

Section 445(a) of GEPA provides for the parental right of access to

instructional materials that will be used in connection with any survey

as part of any applicable program.

Section 445(b) of GEPA provides for the parent's, in the case of an

unemancipated minor, and student's, if the student is an adult or

emancipated minor, right of consent to submit to a survey that reveals

information concerning one or more of the areas specified in the

statute (also listed in Sec. 98.4(a)(2)).

The Secretary interprets the statutory provisions on access and

consent to be read together; this interpretation would require an SEA,

LEA, or other recipient of program funds from the Department of

Education to make available for inspection by a parent or guardian only

those surveys (and instructional material in connection with a survey)

concerning one or more of the areas listed in section 445(b) of GEPA.

Because, unlike the Family Educational Rights and Privacy Act (FERPA),

this statute makes no specific reference applying the access and

consent provisions to post-secondary institutions and the legislative

history supports only applying these provisions to elementary and

secondary school students, these proposed regulations will only apply

to surveys administered in elementary and secondary schools.

[[Page 44697]]

--Access provision: The Secretary would implement the access provision

by requiring that an SEA, LEA, or other recipient that uses any type of

program funds received from the Department, to develop or implement a

survey must make available for inspection by a parent or guardian of a

student a survey, and the instructional materials used in connection

with the survey, if the survey (1) asks the student to reveal

information concerning one or more of the areas listed in section

445(b) of GEPA; and (2) is administered in an elementary or secondary

school.

--Compliance with a request for access: An SEA, LEA, or other recipient

would be required to comply with a request to inspect a survey (and the

instructional materials used in connection with the survey) without

unnecessary delay and in no case more than 45 days after it has

received the request. This requirement is consistent with FERPA. Also,

the Secretary believes this requirement is a reasonable way to ensure a

prompt response to a parent's request for access to these materials

while not requiring an SEA, LEA, or other recipient to provide

immediate access.

An SEA, LEA, or other recipient would not be required to provide

parents with their own copy of a survey (and the instructional material

used in connection with the survey). The Secretary believes that such a

requirement would be unduly burdensome. The Secretary notes, however,

that an SEA, LEA, or other recipient may wish to provide a copy of a

survey in order to accommodate parents with disabilities.

--Destruction of material: An SEA, LEA, or other recipient would not be

permitted to destroy any survey or the instructional material used in

connection with the survey, if there is an outstanding request to

inspect the material under Sec. 94.10 of the regulations. The Secretary

believes this provision is necessary to ensure that a parent's request

for access is not frustrated.

--Consent provision: The Secretary would implement the consent

provision by requiring an SEA, LEA, or other recipient to obtain the

prior consent of the parent or guardian, or student, as appropriate,

before a student is required to submit to the survey if the SEA, LEA,

or other recipient (1) uses any type of program funds, received from

the Department, to develop or implement a survey; (2) the survey is

administered in an elementary or secondary school; and (3) requires a

student to submit to a survey that asks the student to reveal

information concerning one or more of the areas listed in section

445(b) of GEPA. The Secretary has not interpreted ``required'' as used

in section 445(b) of GEPA. By not interpreting the word ``required'',

the Secretary will not be imposing a single rule to address a myriad of

situations. Recipients will make initial judgments in individual cases

as to whether a survey is or has been ``required'' in the

administration of their activities. In the event a complaint is filed

with the Department, the Department will determine on a case-by-case

basis in light of all the circumstances whether a student has been

required to submit to a survey.

Section 445(b) of GEPA provides that if a student is an

unemancipated minor, a parent or guardian of a student provides the

consent. If a student is an adult or emancipated minor, the student

provides the consent. An adult would be defined as an individual who

has attained 18 years of age. An emancipated minor would be defined

according to the definition under State law.

--Obtaining consent: To meet the requirements of prior consent an SEA,

LEA, or other recipient must provide an opportunity for the student or

parent or guardian of a student to review a general description or

summary of the type of information found in section 445(b) that is

included in the survey and to provide information to the parent or

guardian on the right to inspect the materials before the student

submits to the survey. Rather than prescribing in regulations a

standard form of written consent for parents or guardians, the

Secretary proposes to allow an SEA, LEA, or other recipient the

flexibility to develop its own type of written consent. To provide

guidance to SEAs, LEAs, and other recipients, the Department intends to

develop a model consent form.

Section 98.30 LEA Notification

Section 445(c) of GEPA provides that educational agencies and

institutions shall give parents and students effective notice of their

rights. The Secretary would implement this provision by requiring each

LEA to give effective notice to parents of students in attendance, and

students currently in attendance, at the LEA of their rights under the

regulations. The notice would state, at a minimum, that parents and

students have the four rights listed in Sec. 98.2. An LEA would have

the option to include more information in the notice. With respect to

frequency, an annual notification, for example, would constitute an

effective notice.

Section 98.40 Family Policy Compliance Office and the Office of

Administrative Law Judges Functions

Section 445(e) of GEPA requires the Secretary to establish or

designate an office and review board within the Department to

investigate, process, review, and adjudicate violations of the rights

established under this section. The Secretary would designate the

Family Policy Compliance Office (Office) to investigate, process, and

review complaints of violations under the regulations and to provide

technical assistance to ensure compliance with the regulations. The

Secretary would designate the Office of Administrative Law Judges as

having jurisdiction over proceedings to recover, withhold, and

terminate funds and to conduct hearings to compel compliance through

cease and desist orders.

Section 98.41 Conflict With State or Local Laws

If an SEA or LEA determines that it cannot comply with the

requirements of these regulations due to a conflict with State or local

laws, it would be required to notify the Office within 45 days, giving

the text and citation of the conflicting law. This provision is

consistent with the Family Educational Rights and Privacy regulations

(34 CFR 99.61). The Secretary believes that, to the extent possible,

these proposed regulations should parallel the regulations implementing

the Federal Educational Rights and Privacy Act (FERPA) because both the

protection of pupil rights legislation and FERPA were originally

introduced together with a common purpose and, therefore, should be

administered in a similar fashion.

Section 98.42 SEA or LEA Required Reports

Under the proposed regulations the Office may require an SEA or LEA

to submit reports containing information necessary to resolve

complaints under this part, including information regarding the source

of funding for the survey, and to ensure that SEAs, LEAs, or other

recipients are complying with the statute. This requirement is in the

current regulations (34 CFR 98.6).

Sections 98.43, 98.44, 98.45 Complaint Procedures

The statute does not specify any procedures for filing or

processing a

[[Page 44698]]

complaint. The regulations would allow a parent or student, as

appropriate, to file a written complaint with the Office regarding an

alleged violation under this part. This requirement is in the current

regulations (34 CFR 98.7(a)).

The proposed regulations would clarify when a parent and student

have a right to file a complaint. Also, the proposed regulations would

require that a complaint contain specific allegations of fact giving

reasonable cause to believe that a violation of this part has occurred.

The Office would investigate each timely complaint to determine whether

an SEA, LEA, or other recipient has failed to comply with the proposed

regulations. These requirements are in 34 CFR 98.7(a) and (b),

respectively, of the current regulations.

The proposed regulations clarify when a complaint would be timely

and when the Office may extend the time limit. These provisions are

consistent with the requirements in 34 CFR 99.64(c) and (d) of the

FERPA regulations. Again, the Secretary believes that for the reasons

already discussed, and to the extent possible, the proposed regulations

should be consistent with the FERPA regulations.

--Notice of complaint issued by the Office: The Office notifies the

complainant and the SEA, LEA, or other recipient in writing if it

initiates an investigation of a complaint and notifies the complainant

if it does not initiate an investigation of a complaint. The required

content of the notice to the SEA, LEA, or other recipient is consistent

with 34 CFR 98.8(a) and (b) of the current regulations. The Secretary

believes this notification is necessary to keep the complainant

properly informed of the status of his or her complaint.

Sections 98.46, 98.47 Enforcement Process

The statute does not prescribe any enforcement procedures except

for the establishment or designation of an office and review board

within the Department of Education to investigate, process, review and

adjudicate violations of the rights established by section 445 of GEPA.

Under the proposed regulations, the Office would review a complaint and

response and may permit the parties to submit further written or oral

arguments or information. Following its investigation, the Office would

provide to the complainant and the SEA, LEA, or other recipient written

notice of its findings and the basis for its findings. If the Office

found that the SEA, LEA, or other recipient had not complied with these

regulations, the notice would (1) include a statement of the specific

steps that the SEA, LEA, or other recipient must take to comply; and

(2) provide a reasonable period of time, given all the circumstances of

the case, during which the SEA, LEA, or other recipient may comply

voluntarily. This procedure is consistent with that in 34 CFR 98.9 of

the current regulations.

If an SEA, LEA, or other recipient other than a contractor does not

voluntarily comply with the proposed regulations, the Office may, in

accordance with part D of GEPA, (1) withhold, recover, or terminate

funds under 34 CFR 81.3; or (2) issue a complaint to compel compliance

through a cease-and-desist order under 34 CFR 81.3. This is consistent

with 34 CFR 98.10(a)(1) of the current regulations.

If a contractor does not voluntarily comply with the proposed

regulations, the Office may direct the contracting officer to take an

appropriate action authorized under the Federal Acquisition Regulation,

including either (1) issuing a notice to suspend operations under 48

CFR 12.5; or (2) issuing a notice to terminate for default, either in

whole or in part under 48 CFR 49.102.

If, after an investigation, the Secretary finds that an SEA, LEA,

or other recipient has complied voluntarily with these regulations, the

Secretary provides the complainant and the SEA or LEA written notice of

the decision and the basis for the decision. These enforcement

provisions are consistent with 34 CFR 98.10(b) of the current

regulations.

Executive Order 12866

1. Assessment of Costs and Benefits

These proposed regulations have been reviewed in accordance with

Executive Order 12866. Under the terms of the order the Secretary has

assessed the potential costs and benefits of this regulatory action.

The potential costs associated with the proposed regulations are

those resulting from statutory requirements and those determined by the

Secretary to be necessary to administer this program effectively and

efficiently. Burdens specifically associated with information

collection requirements, if any, are identified and explained elsewhere

in this preamble under the heading Paperwork Reduction Act of 1980.

In assessing the potential costs and benefits--both quantitative

and qualitative--of these proposed regulations, the Secretary has

determined that the benefits of the proposed regulations justify the

costs.

To assist the Department in complying with the specific

requirements of Executive Order 12866, the Secretary invites comment on

whether there may be further opportunities to reduce any potential

costs or increase potential benefits resulting from these proposed

regulations without impeding the effective and efficient administration

of the program.

2. Clarity of the Regulations

Executive Order 12866 requires each agency to write regulations

that are easy to understand.

The Secretary invites comments on how to make these proposed

regulations easier to understand, including answers to questions such

as the following: (1) Are the requirements in the proposed regulations

clearly stated? (2) Do the regulations contain technical terms or other

wording that interferes with their clarity? (3) Does the format of the

regulations (grouping and order of sections, use of headings,

paragraphing etc.) aid or reduce their clarity? Would the regulations

be easier to understand if they were divided into more (but shorter)

sections? (A ``section'' is preceded by the symbol ``Sec. '' and a

numbered heading; for example, Sec. 98.1 To which programs do these

regulations apply?) (4) Is the description of the regulations in the

``Supplementary Information'' section of this preamble helpful in

understanding the regulations? How could this description be more

helpful in making the regulations easier to understand? (5) What else

could the Department do to make the regulations easier to understand?

A copy of any comments that concern how the Department could make

these proposed regulations easier to understand should be sent to

Stanley M. Cohen, Regulations Quality Officer, U.S. Department of

Education, 600 Independence Avenue, SW. (room 5121, FOB-10B),

Washington, DC 20202-2241.

Regulatory Flexibility Act Certification

The Secretary certifies that these proposed regulations would not

have a significant economic impact on a substantial number of small

entities.

The small entities that would be affected by these proposed

regulations are small LEAs receiving Federal funds from the Department.

However, the regulations would not have a significant economic impact

on the small LEAs affected because the regulations would not impose

excessive regulatory burdens or require unnecessary Federal

supervision. The regulations would

[[Page 44699]]

impose minimal requirements to ensure that LEAs comply with the pupil

protection requirements in GEPA.

Paperwork Reduction Act of 1980

Section 98.30 contains information collection requirements. As

required by the Paperwork Reduction Act of 1980, the Department of

Education will submit a copy of this section to the Office of

Management and Budget (OMB) for its review. (44 U.S.C. 3504(h))

SEAs, LEAs, and other recipients may be affected by these

regulations. The Department needs and uses the information to ensure

compliance with requirements in the Pupil Protection Rights in GEPA.

Annual public reporting burden for this collection of information is

estimated to be .25 hours per response for 15,713 respondents,

including the time for reviewing instructions, searching existing data

sources, gathering and maintaining the data needed, and completing and

reviewing the collection of information.

Organizations and individuals desiring to submit comments on the

information collection requirements should direct them to the Office of

Information and Regulatory Affairs, OMB, room 3002, New Executive

Office Building, Washington, DC 20503; Attention: Daniel J. Chenok.

Invitation to Comment

Interested persons are invited to submit comments and

recommendations regarding these proposed regulations. This section

highlights those issues already discussed in the preamble on which the

Secretary would particularly like comment.

The Secretary has attempted to balance a number of interests by

interpreting ``applicable program'' narrowly and applying these

regulations only to surveys that are developed or implemented under

Department programs. The Secretary believes that this interpretation

balances the rights of parents and students under the statute with the

interests of local governments and schools in minimal administrative

burdens. The Secretary requests comments on this interpretation. The

Secretary is trying to minimize the role of the Federal government in

implementing the statute.

The Secretary specifically requests comments from school officials

regarding the practicality of a narrow interpretation. As proposed, if

asked, an SEA or LEA would have to be able to identify which funds it

used to develop, or otherwise implement, a survey. On the other hand,

if the Secretary interpreted ``applicable program'' broadly, the

regulations would apply to any survey given by a school that receives

money from the Department, and an identification of whether Department

money was used in developing or implementing the survey would be

unnecessary. The Secretary welcomes comments on whether school

officials believe the broader interpretation of ``applicable program''

would be less burdensome.

The Secretary also requests comments on whether it is clear that

these proposed regulations only apply to surveys that are developed,

purchased, implemented, or otherwise funded under Department programs

covered by section 445 of GEPA. The Secretary also requests comments on

whether the provisions regarding access and consent rights, Secs. 98.10

and 98.20 respectively, provide adequate guidance.

As previously stated in the preamble the Secretary would like

comments on whether the regulations should include a definition of

``survey'' (see discussion of Sec. 98.3 Definitions) and ``required''

(see discussion of Secs. 98.10, 98.20 Access and consent: Obtaining

consent).

Finally, as already discussed, the regulations interpret the

statute to apply to surveys administered in elementary or secondary

schools because the statute specifically provides protections under

this law to ``students.'' The Secretary requests specific comments on

whether the statutory provisions should be interpreted to include

surveys administered in settings outside of schools, such as

Department-sponsored household-based surveys, conducted either by

telephone or in person.

All comments submitted in response to these proposed regulations

will be available for public inspection, during and after the comment

period, in room 1366, FOB-10, 600 Independence Avenue SW., Washington,

DC, between the hours of 8:30 a.m. and 4 p.m., Monday through Friday of

each week except Federal holidays.

Assessment of Educational Impact

The Secretary particularly requests comments on whether the

proposed regulations in this document would require transmission of

information that is being gathered by or is available from any other

agency or authority of the United States.

List of Subjects in 34 CFR Part 98

Administrative practice and procedure, Education, Educational

research, Privacy, Reporting and recordkeeping requirements, Schools,

and Students.

Dated: August 21, 1995.

Richard W. Riley,

Secretary of Education.

(Catalog of Federal Domestic Assistance Number does not apply.)

The Secretary proposes to amend title 34 of the Code of Federal

Regulations by revising part 98 to read as follows:

PART 98--PROTECTION OF PUPIL RIGHTS

Subpart A--General

Sec.

98.1 To which programs do these regulations apply?

98.2 What is the purpose of these regulations?

98.3 What definitions apply to these regulations?

Subpart B--Access

98.10 What are a parent's rights of access to a survey?

Subpart C--Consent

98.20 In what circumstances must an SEA, LEA, or other recipient

obtain consent before requiring a student to submit to a survey?

Subpart D--Notification

98.30 What must an LEA include in its annual notification?

Subpart E--Enforcement

98.40 What are the functions of the Family Policy Compliance Office

(Office) and the Office of Administrative Law Judges?

98.41 What are an SEA's and LEA's responsibilities in the case of a

conflict with State or local laws?

98.42 What information must an SEA, LEA, or other recipient submit

to the Office?

98.43 Where are complaints filed?

98.44 What is the complaint procedure?

98.45 What is the content of the notice of complaint issued by the

Office?

98.46 What are the responsibilities of the Office in the

enforcement process?

98.47 How does the Office enforce decisions?

Authority: 20 U.S.C. 1232h, unless otherwise noted.

Subpart A--General

Sec. 98.1 To which programs do these regulations apply?

This part applies to any applicable program, that is, any program

for which the Secretary or the Department has administrative

responsibility as provided by law or by delegation of authority

pursuant to law.

(Authority: 20 U.S.C. 1232h)

Sec. 98.2 What is the purpose of these regulations?

Parents and students have the following rights under this part:

(a) Parental right to have access to certain surveys, analyses, or

evaluations

[[Page 44700]]

(surveys), and the instructional materials used in connection with

these surveys of a student.

(b) Parental or student right to consent before the student is

required to submit to certain surveys.

(c) Parental or student right to file a complaint for alleged

violations of the rights in paragraphs (a), (b), and (d) of this

section.

(d) Parental or student right to receive effective notice of the

rights under paragraphs (a), (b), and (c) of this section.

(Authority: 20 U.S.C. 1232h)

Sec. 98.3 What definitions apply to these regulations?

(a) The following terms used in this part are defined in 34 CFR

77.1:

Department

Elementary school

Grantee

Local educational agency (LEA)

Secondary school

Secretary

State educational agency (SEA).

(b) Other definitions. The following definitions also apply to this

part:

Adult means an individual who has attained 18 years of age.

Emancipated minor means a person under 18 years of age who would be

considered emancipated according to state law.

Recipient, for the purposes of this part, means a grantee,

subgrantee, or contractor that receives financial assistance directly

from the Department to carry out a project and includes the Department.

(Authority: 20 U.S.C. 1232h)

Subpart B--Access

Sec. 98.10 What are a parent's rights of access to a survey?

(a) An SEA, LEA, or other recipient that receives funds from the

Department to develop or implement a survey shall make available for

inspection by a parent or guardian of a student the survey, and the

instructional materials used in connection with the survey, if the

survey--

(1) Is administered in an elementary or a secondary school; and

(2) Asks the student to reveal information concerning one or more

of the following areas:

(i) Political affiliations.

(ii) Mental and psychological problems potentially embarrassing to

the student or his or her family.

(iii) Sex behavior and attitudes.

(iv) Illegal, anti-social, self-incriminating, and demeaning

behavior.

(v) Critical appraisals of other individuals with whom the student

has close family relationships.

(vi) Legally recognized privileged or analogous relationships, such

as those of lawyers, physicians, and ministers.

(vii) Income, other than that required by law to determine

eligibility for participation in a program or for receiving financial

assistance under a program.

(b)(1) An SEA, LEA, or other recipient shall comply with a parent's

request to inspect a survey (and the instructional material used in

connection with the survey) under paragraph (a) of this section without

unnecessary delay and in no case more than 45 days after the recipient

receives the request.

(2) An SEA, LEA, or other recipient is not required to give a

personal copy of the survey, and the instructional materials, to a

parent who requests to inspect a survey under paragraph (a) of this

section.

(c) An SEA, LEA, or other recipient may not destroy any survey, or

any instructional material used in connection with the survey, if there

is an outstanding request by a parent to inspect the material under

this section.

(d) An SEA, LEA, or other recipient shall make the survey available

for inspection under paragraph (a) of this section even if a student is

not required to submit to the survey under Sec. 98.20.

(Authority: 20 U.S.C. 1232h(a))

Subpart C--Consent

Sec. 98.20 In what circumstances must an SEA, LEA, or other recipient

obtain consent before requiring a student to submit to a survey?

(a) An SEA, LEA, or other recipient shall obtain the prior consent

of the parent or guardian of a student, or the student, if appropriate

under paragraph (b) of this section, before the student is required to

submit to the survey if the SEA, LEA, or other recipient--

(1) Uses funds, received from the Department, to develop or

implement the survey;

(2) Administers the survey in an elementary or secondary school;

(3) Requires the student to submit to the survey; and

(4) Asks the student in the survey to reveal information concerning

one or more of the areas listed in Sec. 98.10(a)(2).

(b)(1) If a student is an unemancipated minor, the SEA, LEA, or

other recipient must obtain the consent required in paragraph (a) of

this section, in writing, from the parent or guardian of the student.

(2) If a student is an adult or emancipated minor, the SEA, LEA, or

other recipient must obtain the consent required in paragraph (a) of

this section from the student.

(c) To meet the requirements of prior consent the SEA, LEA, or

other recipient must provide--

(1) An opportunity for the student or parent or guardian of a

student to review a general description or summary of the type of

information found in Sec. 98.10(a)(2) that is included in the survey;

and

(2) Information to the parent or guardian on the right to inspect

these materials before the student submits to the survey.

(Authority: 20 U.S.C. 1232h(b))

Subpart D--Notification

Sec. 98.30 What must an LEA include in its notification?

(a) Each LEA shall give effective notice to parents of students in

attendance, and to students currently in attendance at the LEA of their

rights under this part.

(b) The notice must state that parents and students have the rights

listed in Sec. 98.2.

(c) As used in paragraph (a) of this section, effective notice

means a notice that is reasonably likely to inform parents and

students, including those with disabilities and those whose primary or

home language is not English, of their rights.

(Authority: 20 U.S.C. 1232h(c))

Subpart E--Enforcement

Sec. 98.40 What are the functions of the Family Policy Compliance

Office (Office) and the Office of Administrative Law Judges?

(a) The Family Policy Compliance Office (Office)--

(1) Investigates, processes, and reviews complaints of violations

under this part; and

(2) Provides technical assistance to ensure compliance with this

part.

(b) The Office of Administrative Law Judges has jurisdiction to

conduct the following proceedings to enforce the requirements in this

part--

(1) Hearings for recovery of funds.

(2) Withholding hearings.

(3) Termination hearings.

(4) Cease and desist hearings.

(Authority: 20 U.S.C. 1232h(e))

Sec. 98.41 What are an SEA's and LEA's responsibilities in the case of

a conflict with State or local laws?

If an SEA or LEA determines that it cannot comply with any of the

requirements of this part due to a conflict with State or local laws,

it shall notify the Office within 45 days, giving the text and citation

of the conflicting law.

[[Page 44701]]

(Authority: 20 U.S.C. 1232h)

Sec. 98.42 What information must an SEA, LEA, or other recipient

submit to the Office?

The Office may require an SEA, LEA, or other recipient to submit

reports containing information necessary--

(a) To resolve complaints under this part, including information

regarding the source of funding for the survey; and

(b) To ensure that SEAs, LEAs, or other recipients are complying

with the statute.

(Authority: 20 U.S.C. 1232h)

Sec. 98.43 Where are complaints filed?

A parent or student, as appropriate under Sec. 98.44(a), may file a

written complaint with the Office regarding an alleged violation under

this part. The Office's address is: Family Policy Compliance Office,

U.S. Department of Education, 600 Independence Avenue, SW., FOB-10,

room 1366, Washington, D.C. 20202-4605.

(Authority: 20 U.S.C. 1232h(d))

Sec. 98.44 What is the complaint procedure?

(a)(1) A parent may file a complaint under this part for alleged

violations of the parent's rights of access, consent, or to be notified

of the parent's rights under Secs. 98.10, 98.20, and 98.30.

(2) A student who is an emancipated minor or an adult may file a

complaint under this part for alleged violations of the student's

rights to consent or to be notified of the student's rights under

Secs. 98.20 and 98.30.

(b) A complaint filed under Sec. 98.43 must contain specific

allegations of fact giving reasonable cause to believe that a violation

of this part has occurred.

(c) The Office investigates each timely complaint to determine

whether the SEA, LEA, or other recipient has failed to comply with the

provisions of this part.

(d)(1) For purposes of this section, a timely complaint is an

allegation of a violation of this part that is submitted to the Office

within 180 days of--

(i) The date of the alleged violation; or

(ii) The date that the complainant knew or reasonably should have

known of the alleged violation.

(2) The Office may extend the time limit in this section if the

complainant shows that he or she was prevented by circumstances beyond

the complainant's control from submitting the matter within the time

limit, or for other reasons considered sufficient by the Office.

(Authority: 20 U.S.C. 1232h(d))

Sec. 98.45 What is the content of the notice of complaint issued by

the Office?

(a) The Office notifies the complainant and the SEA, LEA, or other

recipient in writing if it initiates an investigation of a complaint

under Sec. 98.46(b). The notice to the SEA, LEA, or other recipient--

(1) Includes the substance of the alleged violation; and

(2) Requests that the SEA, LEA, or other recipient submit a written

response to the complaint.

(b) The Office notifies the complainant if it does not initiate an

investigation of a complaint because the complaint fails to meet the

requirements of Sec. 98.44.

(Authority: 20 U.S.C. 1232h(d))

Sec. 98.46 What are the responsibilities of the Office in the

enforcement process?

(a) The Office reviews the complaint and response and may permit

the parties to submit further written or oral arguments or information.

(b) Following its investigation, the Office provides to the

complainant and the SEA, LEA, or other recipient written notice of its

findings and the basis for its findings.

(c) If the Office finds that the SEA, LEA, or other recipient has

not complied with this part, the notice under paragraph (b) of this

section--

(1) Includes a statement of the specific steps that the SEA, LEA,

or other recipient must take to comply; and

(2) Provides a reasonable period of time, given all the

circumstances of the case, during which the SEA, LEA, or other

recipient may comply voluntarily.

(Authority: 20 U.S.C. 1232h(d))

Sec. 98.47 How does the Office enforce decisions?

(a) If the SEA, LEA, or other recipient other than a contractor

does not comply during the period of time set under Sec. 98.46(c)(2),

the Office may, in accordance with part D of the General Education

Provisions Act--

(1) Withhold, recover, or terminate funds under 34 CFR 81.3; or

(2) Issue a complaint to compel compliance through a cease-and-

desist order under 34 CFR 81.3.

(b) If a contractor does not comply during the period of time set

under Sec. 98.13(c)(2), the Office may direct the contracting officer

to take an appropriate action authorized under the Federal Acquisition

Regulation, including either--

(1) Issuing a notice to suspend operations under 48 CFR 12.5; or

(2) Issuing a notice to terminate for default, either in whole or

in part under 48 CFR 49.102.

(c) If, after an investigation under Sec. 98.44(c), the Secretary

finds that an SEA, LEA, or other recipient has complied voluntarily

with this part, the Secretary provides the complainant and the SEA,

LEA, or other recipient written notice of the decision and the basis

for the decision.

(Authority: 20 U.S.C. 1232h(d))

[FR Doc. 95-21227 Filed 8-25-95; 8:45 am]

BILLING CODE 4000-01-P