Family Educational Rights and Privacy

SUMMARY: The Secretary proposes to amend the regulations implementing

the Family Educational Rights and Privacy Act (FERPA). The amendments

are needed to implement sections 951 and 952 of the Higher Education

Amendments of 1998 (HEA), and to clarify several existing provisions.

DATES: Comments must be received by the Department on or before August

2 1999.

ADDRESSES: All comments concerning these proposed regulations should be

addressed to LeRoy Rooker, U.S. Department of Education, 400 Maryland

Avenue, SW., Washington, D.C. 20202-4605. Comments may also be sent

through the Internet to [email protected]

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

Education, 400 Maryland Avenue, SW., Washington, D.C. 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.

Individuals with disabilities may obtain this document in an

alternate format (e.g., Braille, large print, audiotape, or computer

diskette) on request to the contact person listed in the preceding

paragraph.

SUPPLEMENTARY INFORMATION:

Invitation To Comment

Interested persons are invited to submit comments and

recommendations regarding these proposed regulations. To ensure that

public comments have maximum effect in developing the final

regulations, the Department urges commenters to identify clearly the

specific section or sections of the proposed regulations that each

comment addresses and to arrange comments in the same order as the

proposed regulations.

The Secretary particularly requests comments from institutions of

postsecondary education on whether the new regulatory definitions of

``crime of violence,'' and ``final results'' under Sec. 99.39 are

sufficiently clear and provide adequate guidance in interpreting and

applying the statutory amendment.

The Secretary also particularly requests comments on whether the

provision concerning the nonconsensual disclosure of information to

parents and guardians under Sec. 99.31(a)(14) is sufficiently clear and

whether it provides adequate guidance on this new permissible

disclosure.

All comments submitted in response to these proposed regulations

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

period, in Room 2W113, FB-6, 400 Maryland Avenue, SW., Washington,

D.C., between the hours of 8:30 a.m. and 4:00 p.m., Monday through

Friday of each week except Federal holidays.

On request the Department supplies an appropriate aid, such as a

reader or print magnifier, to an individual with a disability who needs

assistance to review the comments or other documents in the public

rulemaking docket for these proposed regulations. An individual with a

disability who wants to schedule an appointment for this type of aid

may call (202) 205-8113 or (202) 260-9895. An individual who uses a TDD

may call the Federal Information Relay Service at 1-800-877-8339.

To assist the Department in complying with the specific

requirements of Executive Order 12866 and its overall requirement of

reducing regulatory burden, the Secretary invites comments on whether

there may be further opportunities to reduce any regulatory burdens

found in these proposed regulations.

Background

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 Partnership for Reinventing

Government and are essential to an effective partnership with States

and localities. The Secretary proposes these regulations and 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 protecting parents' and students'

rights.

Summary of Major Provisions

The following is a summary of the regulatory provisions the

Secretary proposes as necessary to implement the statute (Pub. L. 105-

244, effective October 1, 1998), such as interpretations of statutory

text or standards and procedures for the operation of the program. Some

of the provisions 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.

1. Section 99.1 Applicability

FERPA applies to educational agencies and institutions to which

funds are made available under any program which is administered by the

Secretary. The proposed clarification of the term ``educational

agency'' is necessary because the phrase ``performs service functions

for'' causes confusion with the public. This revision clarifies that

FERPA generally applies to educational agencies that have direct

administrative responsibilities for the educational services provided

by public elementary and secondary schools or by postsecondary

institutions.

2. Section 99.3 Definitions

The Secretary proposes to amend the definition of the term

``directory information'' by adding additional items that may be

designated by an educational agency or institution as ``directory

information'' and to clarify the meaning of ``dates of attendance.''

The term ``dates of attendance'' is intended to refer to the period of

time during which an individual attended or was enrolled in an

educational agency or institution and not to a student's daily

attendance record.

The Secretary also proposes to clarify the definition of sole

possession records. The Secretary proposes to provide more detailed

guidance on the definition because there has been confusion over the

term. Sole possession records are memory aids or reference tools that

do not contain information taken directly from a student or records

that are used to make decisions about the student.

3. Section 99.5 Rights of Students

The Secretary proposes to provide additional guidance regarding the

requirement that a student attending one component of an educational

agency or institution does not have rights under FERPA with respect to

other components of the same agency or institution to which the

individual has applied for admission. This clarification restates

Sec. 99.5(c) in a more direct manner in order to explain that an

individual who is or has been a student at an agency or institution and

who has been rejected for admission by a

[[Page 29533]]

component of that agency or institution does not have rights under

FERPA with respect to that application for admission.

4. Section 99.31(a)(3) Prior Consent Not Required for Disclosure to

Attorney General of the United States

The proposed regulations implement a new statutory provision that

permits the disclosure of education records to authorized

representatives of the Attorney General of the United States for law

enforcement purposes without specific consent of the student.

5. Section 99.31(a)(8) Prior Consent Not Required for Disclosures to

Parents of a Dependent Student

The Secretary clarifies that educational agencies and institutions

may disclose education records to the parents of a dependent student,

as defined in section 152 of the Internal Revenue Code of 1986, without

the student's consent. An educational agency or institution may

disclose education records to either parent of a dependent student,

regardless of which parent claims the student as a dependent.

6. Section 99.31(a)(9)(iv) Prior Consent Not Required for Disclosures

That Are Necessary for the Educational Agency or Institution To Defend

Itself

A new regulatory provision states that FERPA permits an educational

agency or institution to release education records to a court, without

a parent's or an eligible student's prior written consent and without a

court order or lawfully issued subpoena, if the parent or eligible

student has initiated legal action against the school. The disclosure

is limited to those records that are necessary for the agency or

institution to defend itself in court.

7. Section 99.31(a)(13) and Sec. 99.39 Disclosure of Final Results of

Certain Disciplinary Proceedings

The HEA amended the statute to allow a postsecondary institution to

disclose the final results of any disciplinary proceeding conducted by

the institution against a student who is an alleged perpetrator of a

crime of violence if the institution determines, as a result of the

proceeding, that the student committed a violation of the institution's

rules or policies with regard to that crime.

A new section (Sec. 99.39) provides guidance to institutions

regarding this change, and lists the applicable definitions. The

Secretary particularly welcomes comment on this provision.

8. Section 99.31(a)(14) Prior Consent Not Required for Disclosures to

Parents and Legal Guardians Regarding Violations of Alcohol or Drug

Laws or Rules

The HEA amended the statute to permit postsecondary institutions to

disclose to parents and legal guardians of students under the age of

21, without the student's consent, information regarding the student's

violation of any Federal, State, or local law, or any rule or policy of

the institution governing the use or possession of alcohol or a

controlled substance.

In addition to this new provision, the statute already provides

that postsecondary institutions may disclose certain information from a

student's education records to parents or legal guardians under several

exceptions to the prior consent rule. Under Sec. 99.31(a)(8) of the

regulations, institutions may release information to parents or

guardians, without the student's consent, if the student is a dependent

for tax purposes. Also, under Sec. 99.31(a)(10), an institution may

release information to a parent or guardian in connection with a health

or safety emergency. This provision adds a new exception to the prior

consent requirement of FERPA.

Clarity of the Regulations

Executive Order 12866 and the President's Memorandum of June 1,

1998 on ``Plain Language in Government Writing'' require 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:

Are the requirements in the proposed regulations clearly

stated?

Do the proposed regulations contain technical terms or

other wording that interferes with their clarity?

Does the format of the proposed regulations (grouping and

order of sections, use of headings, paragraphing, etc.) aid or reduce

their clarity?

Would the proposed regulations be easier to understand if

we divided them into more (but shorter) sections? (A ``section'' is

preceded by the symbol ``Sec. '' and a numbered heading; for example,

Sec. 99.31.)

Could the description of the proposed regulations in the

SUPPLEMENTARY INFORMATION section of this preamble be more helpful in

making the proposed regulations easier to understand? If so, how?

What else could we do to make the proposed regulations

easier to understand?

Send any comments that concern how the Department could make these

proposed regulations easier to understand to the person listed in the

ADDRESSES section of the preamble.

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 local educational agencies (LEAs) receiving

Federal funds from the Department and certain 4- and 2-year colleges

and for-profit postsecondary trade and technical schools with small

enrollments that receive federal funds, such as student aid programs

under Title IV of the Higher Education Act of 1965. 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 impose minimal requirements to ensure that LEAs

comply with the educational privacy protection requirements in FERPA.

Paperwork Reduction Act of 1995

These proposed regulations do not contain any information

collection requirements.

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.

Electronic Access to This Document

You may view this document, as well as all other Department of

Education documents published in the Federal Register, in text or Adobe

Portable Document Format (PDF) on the Internet at either of the

following sites:

http://ocfo.ed.gov/fedreg.htm

http://www.ed.gov/news.html

To use the PDF you must have the Adobe Acrobat Reader Program with

Search, which is available free at either of the previous sites. If you

have questions about using the PDF, call the U.S. Government Printing

Office (GPO), toll free, at 1-888-293-6498; or in the Washington, D.C.,

area at (202) 512-1530.

Note: The official version of this document is the document

published in the Federal Register. Free Internet access to the

official edition of the Federal Register and the Code of Federal

Regulations is available on GPO

[[Page 29534]]

Access at: http://www.access.gpo.gov/nara/index.html

(Catalog of Federal Domestic Assistance Number does not apply)

List of Subjects in 34 CFR Part 99

Administrative practice and procedure, Education, Information,

Privacy, Parents, Records, Reporting and recordkeeping requirements,

Students.

Dated: May 25, 1999.

Richard W. Riley,

Secretary of Education.

The Secretary proposes to amend part 99 of title 34 of the Code of

Federal Regulations as follows:

PART 99--FAMILY EDUCATIONAL RIGHTS AND PRIVACY

1. The authority citation for part 99 continues to read as follows:

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

2. Section 99.1 is amended by revising paragraph (a)(2) to read as

follows:

Sec. 99.1 To which educational agencies or institutions do these

regulations apply?

(a) * * *

(2) The educational agency provides administrative control of or

direction of public elementary or secondary schools or by postsecondary

institutions.

3. Section 99.3 is amended by revising the definition of

``Directory information'', and by revising paragraphs (b) introductory

text and (b)(1) under the definition of ``Education records'' to read

as follows:

Sec. 99.3 What definitions apply to these regulations?

* * * * *

Directory information. (a)(1) The term means information contained

in an education record of a student that would not generally be

considered harmful or an invasion of privacy if disclosed. It includes,

but is not limited to, the student's name, address, telephone listing,

date and place of birth, major field of study, dates of attendance,

grade level, enrollment status (e.g., undergraduate or graduate; full-

time or part-time), participation in officially recognized activities

and sports, weight and height of members of athletic teams, photograph,

degrees, honors and awards received, and the most recent educational

agency or institution attended.

(2)(i) ``Dates of attendance'' refers to the general periods of

time during which an individual attended or was enrolled in an

educational agency or institution. Examples of ``dates of attendance''

include an academic year, a spring semester, or a first quarter.

(ii) The term ``dates of attendance'' does not include daily

specific records of a student's attendance at an educational agency or

institution. A student's attendance record is not ``directory

information'' and may not be disclosed without consent under FERPA.

(Authority: 20 U.S.C. 1232g(a)(5)(A))

* * * * *

Education records.

* * * * *

(b) The term does not include--

(1) Records that are kept in the sole possession of the maker of

the record--often called sole possession records-- that are not used

for purposes other than a memory or reference tool, that are not

accessible or revealed to any other person except a temporary

substitute for the maker of the record, and that are typically

maintained by the school official unbeknownst to other individuals.

Records that contain information taken directly from a student or that

are used to make decisions about the student are not sole possession

records.

* * * * *

4. Section 99.5 is amended by revising paragraph (c) to read as

follows:

Sec. 99.5 What are the rights of students?

* * * * *

(c) An individual who is or has been a student at an educational

agency or institution and who has been rejected for admission by a

component of that educational agency or institution does not have

rights under this part with respect to records collected and maintained

in connection with consideration of that application for admission.

5. Section 99.31 is amended by revising paragraph (a)(3), revising

paragraph (a)(8), adding paragraph (a)(9)(iv), revising paragraph

(a)(13), adding a new paragraph (a)(14), and revising paragraph (b) to

read as follows:

Sec. 99.31 Under what conditions is prior consent not required to

disclose information?

(a) * * *

(3) The disclosure is, subject to the requirements of Sec. 99.35,

to authorized representatives of--

(i) The Comptroller General of the United States;

(ii) The Attorney General of the United States (for law enforcement

purposes);

(iii) The Secretary; or

(iv) State and local educational authorities.

* * * * *

(8)(i) The disclosure is to parents of a dependent student, as

defined in section 152 of the Internal Revenue Code of 1986.

(ii) The educational agency or institution may disclose information

under paragraph (a)(8)(i) of this section to either parent of a

dependent student, regardless of which parent claims the student as a

dependent.

* * * * *

(9) * * *

(iv) If a parent or eligible student initiates legal action against

the educational agency or institution, the educational agency or

institution may disclose to the court, without a court order or

subpoena, the student's education records that are necessary for the

educational agency or institution to defend itself.

* * * * *

(13) The disclosure is in connection with a disciplinary proceeding

conducted by an institution of postsecondary education against a

student who is an alleged perpetrator of a crime of violence subject to

Sec. 99.39.

(14)(i) The disclosure is to a parent or a legal guardian of a

student at an institution of postsecondary education regarding the

student's violation of any Federal, State, or local law, or of any rule

or policy of the institution, governing the use or possession of

alcohol or a controlled substance if--

(A) The student is under the age of 21; and

(B) The institution determines that the student has committed a

disciplinary violation with respect to that use or possession.

(ii) Paragraph (a)(14)(i) of this section does not supersede any

provision of State law that prohibits an institution of postsecondary

education from making the disclosure permitted in this section.

(b) This section does not forbid an educational agency or

institution from disclosing, nor does it require an educational agency

or institution to disclose, personally identifiable information from

the education records of a student to any parties under paragraphs

(a)(1) through (11) and (13) through (14) of this section.

6. A new Sec. 99.39 is added to read as follows:

Sec. 99.39 What conditions apply to disclosure of records pertaining

to disciplinary proceedings?

(a) An institution of postsecondary education may disclose the

final results of a disciplinary proceeding conducted by the institution

concerning an allegation of a crime of violence against a student who

is an alleged perpetrator of a crime of violence, without the prior

written consent of the student, if the institution determines as a

result of that

[[Page 29535]]

disciplinary proceeding that the student committed a violation of the

institution's rules or policies with respect to that crime.

(b) As used in this part:

Crime of violence, as that term is defined in section 16 of title

18, United States Code, means an offense that has as an element the

use, attempted use, or threatened use of physical force against the

person or property of another, or any other offense that is a felony

and that, by its nature, involves a substantial risk that physical

force against the person or property of another may be used in the

course of committing the offense. It includes, but is not limited to,

the following offenses: criminal homicide, forcible sex offense,

robbery, aggravated assault, and arson, as these terms are defined in

appendix E to 34 CFR part 668, as well as burglary of an occupied

structure or dwelling and kidnaping.

Final results means only the name of the student charged, the

violation committed, and any sanction imposed by the institution on the

student.

(c) The institution must not disclose the name of any other

student, such as a victim or witness, without the prior written consent

of that other student.

(d) This section applies to disclosures made or to requests

received by an institution of postsecondary education on or after

October 1, 1998.

7. Section 99.63 is revised to read as follows:

Sec. 99.63 Where are complaints filed?

A parent or eligible student may file a written complaint with the

Office regarding an alleged violation under the Act and this part. The

Office's address is: Family Policy Compliance Office, 400 Maryland

Avenue, SW, Washington, D.C. 20202-4605.

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

Sec. 99.64 [Revised]

8. Section 99.64(d) is removed and reserved.

[FR Doc. 99-13853 Filed 5-28-99; 8:45 am]

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