[Federal Register Volume 61, Number 51 (Thursday, March 14, 1996)]
[Proposed Rules]
[Pages 10664-10669]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6034]




[[Page 10663]]

_______________________________________________________________________

Part III





Department of Education





_______________________________________________________________________



34 CFR Part 99



Family Educational Rights and Privacy; Proposed Rule

  Federal Register / Vol. 61, No. 51 / Thursday, March 14, 1996 / 
Proposed Rules  

[[Page 10664]]


DEPARTMENT OF EDUCATION

34 CFR Part 99

RIN 1880-AA71


Family Educational Rights and Privacy

AGENCY: Department of Education.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Secretary proposes to amend the regulations implementing 
the Family Educational Rights and Privacy Act (FERPA). The amendments 
are needed to implement section 249 of the Improving America's Schools 
Act of 1994 (IASA) (Pub. L. 103-382, enacted October 20, 1994), to 
eliminate unnecessary requirements and reduce regulatory burden, and to 
incorporate several technical changes.

DATES: Comments must be received on or before May 13, 1996.

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, D.C. 20202-4605. 
Comments may also be sent through the Internet to 
FERPA____C[email protected].
    To ensure that public comments have maximum effect in developing 
the final regulations, the Department urges that each comment clearly 
identify the specific section or sections of the regulations that the 
comment addresses and that comments be in the same order as the 
regulations.
    Comments that concern information collection requirements must be 
sent to the Office of Management and Budget at the address listed in 
the Paperwork Reduction Act of 1995 section of this preamble. A copy of 
those comments may also be sent to the Department representative named 
in the preceding paragraph.

FOR FURTHER INFORMATION CONTACT: Sharon Shirley, U.S. Department of 
Education, 600 Independence Avenue, SW., Room 1366, 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 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 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, 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 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 terms ``educational 
agency'' and ``educational institution'' is necessary to indicate that 
FERPA does not, as a whole, apply to State educational agencies (SEAs), 
which provide supervision of, but no administrative control or 
direction of, public elementary and secondary schools. The proposed 
clarification of ``educational agency'' is adapted from the definition 
of ``local educational agency'' in 34 CFR 77.1 and is modified, in 
particular, to reflect that FERPA applies to certain postsecondary 
administrative agencies, such as those found in university systems. 
FERPA was amended by the IASA to require SEAs to afford parents access 
to their children's education records. In general, that right of access 
to records is the only right parents are afforded by FERPA with regard 
to education records maintained by SEAs.

Section 99.3  Definitions

    The Secretary proposes to amend the definition of the term 
``record'' in the regulations to reflect changing technology and 
changing modes of maintaining information. The proposed term ``computer 
media'' is intended to cover any manner of maintaining information that 
is stored through and retrieved by a computer, including information 
stored on CD-ROM.

Section 99.7  Annual Notification of Rights

    The statute requires that educational agencies and institutions 
effectively inform parents and eligible students of their rights. The 
statute does not, however, require that educational agencies and 
institutions adopt a formal written student records policy. The 
Secretary proposes to remove the requirement in Sec. 99.6 that 
educational agencies and institutions adopt a formal written student 
records policy. The Secretary further proposes to amend the regulations 
so that each educational agency and institution will be required to 
notify parents and eligible students not only of their basic rights 
under FERPA but also of how to pursue those rights at that specific 
agency or institution.
    The current regulations require that educational agencies or 
institutions inform parents and eligible students of their basic 
rights. The current regulations also require that the procedures for 
pursuing those rights be set forth in a student records policy, a copy 
of which parents and eligible students may have upon request. However, 
the Secretary believes that, based on the nature of recent complaints 
under FERPA, parents and eligible students rarely seek access to the 
student records policy and thus remain uninformed of how to pursue 
their rights at that particular school, such as the appropriate 
procedure to seek access to education records. The Secretary also 
believes that removing the requirement for a student records policy and 
adding additional requirements to the annual notification of rights 
will lessen burden on institutions and will reduce administrative costs 
because only one document will be required.
    The Secretary believes that implementation of Congress' mandate 
that students and parents be ``effectively'' notified of their rights 
can best be achieved by requiring additional information in the annual 
notification of rights. In that way, parents and eligible students 
would receive more effective notification of their rights and how to 
pursue them. The Secretary further believes that, because many of the 
items required by current regulations to be in a formal written student 
records policy are not necessary to implement the law, the removal of 
the requirements would give educational agencies and institutions 
greater flexibility. Initially, there may be an additional cost because 
schools will have to change their annual notifications, but this is 
outweighed by

[[Page 10665]]
the elimination of the student records policy requirement. These two 
changes together would reduce burden on educational agencies and 
institutions and would ensure that parents and eligible students are 
more aware of how to pursue their rights.
    The Secretary would allow educational agencies and institutions up 
to three years to transfer from the current requirements and to 
implement the new requirements. In order to provide guidance to 
educational agencies and institutions, the Department would develop a 
model annual notice that meets the new requirements and will make it 
available upon publication of the final regulations. Also, for those 
agencies and institutions that choose to adopt a formal written student 
records policy, the Department would continue to update and make 
available its model student records policy.

Section 99.10  Right To Inspect and Review Education Records

    Under section 444(a) of GEPA, SEAs that maintain education records 
are required to afford parents the right to inspect and review their 
children's education records. The Secretary believes that this new 
statutory requirement should be implemented, to the greatest extent 
possible, in the same manner as the current regulations for educational 
agencies and institutions to afford parents access to education 
records. Therefore, the Secretary proposes to amend the access 
provisions in the current regulations to set forth the new requirements 
for SEAs to afford parents access to education records. The Secretary 
proposes to apply to SEAs the same requirement that applies to 
educational agencies and institutions, i.e., that they provide a parent 
or eligible student access to education records within 45 days of 
receipt of a request. The Secretary requests comments regarding whether 
this time frame for SEAs to retrieve records and provide access to them 
is reasonable.
    The Secretary recognizes that this statutory amendment will impose 
new burdens for SEAs, and seeks comments in particular from the SEAs as 
to how this provision can be administered without significantly 
impeding the duties and day-to-day operations of the SEAs. The 
Secretary seeks comments on how this provision can be implemented with 
minimal burden on SEAs while still affording parents their full 
statutory right of access under FERPA. Finally, the Secretary also 
seeks comments from the SEAs as to what types of records they maintain 
that are directly related to students.

Section 99.31(a)(5)  Prior Consent Not Required for Disclosure to 
Juvenile Justice Systems

    The proposed regulations implement a new statutory provision that 
permits, under certain circumstances, the disclosure of education 
records if allowed by State law and if the disclosure concerns the 
juvenile justice system's ability to serve, prior to adjudication, the 
student whose records are released. The Secretary has not proposed to 
define the terms ``juvenile justice system'' and ``prior to 
adjudication'' to give States flexibility to define these terms 
consistent with State law and practice. The Secretary is not aware of 
any advantage or need for a uniform definition.

Section 99.31(a)(9)  Prior Consent Not Required for Disclosures 
Pursuant to Court Orders and Lawfully Issued Subpoenas

    The Secretary proposes that educational agencies and institutions 
shall not be required to notify parents or eligible students prior to 
disclosures of education records pursuant to a federal grand jury 
subpoena or a subpoena issued for a law enforcement purpose. The 
Secretary also proposes a new regulatory provision regarding the 
disclosure of education records when an educational agency or 
institution initiates legal action against a parent or student.
    The new regulatory provision would clarify that FERPA permits an 
educational agency or institution to release education records in court 
without a parent's or eligible student's prior written consent if the 
educational agency or institution is initiating legal action against 
the parent or student, and the agency or institution has made a 
reasonable effort to notify the parent or eligible student of the 
intent to disclose in advance. The purpose of this notification 
requirement is to give the parent or eligible student the opportunity 
to seek a protective order, if the parent or student does not want 
personally identifiable information disclosed to the public. This new 
provision will impose a minimal burden on schools; however, the cost of 
notification to parents is outweighed by the benefit to parents who 
will be notified prior to the release of their children's education 
records to a court.

Section 99.36  Disclosure of Information From Disciplinary Records

    The statute was amended by the IASA to make explicit that FERPA 
does not prevent educational agencies and institutions from maintaining 
records related to a disciplinary action taken against a student for 
behavior that posed a significant risk to the student or others or from 
disclosing this information to school officials who have been 
determined to have a legitimate educational interest in the behavior of 
the student. These matters were implicit in the statute prior to the 
change.
    The statutory amendment also permits the disclosure of information 
regarding disciplinary action to school officials in other schools that 
have a legitimate educational interest in the behavior of the student. 
The Secretary interprets the statute to allow a school official to 
disclose information regarding disciplinary action to school officials 
in schools where a student is not in attendance. The Secretary believes 
that officials in other schools have a legitimate educational interest 
in cultivating a safe school environment.
    For example, if a school official knows that a student, who has 
been disciplined for carrying a weapon, is planning to attend a school-
sponsored activity at another high school, FERPA would not prohibit the 
school official from notifying school officials at the other high 
school.
    The Secretary believes this interpretation is consistent with 
Congress' intent. The Secretary welcomes comment on this provision. 
While this provision imposes a potential cost to students and parents, 
because education records may be released without their consent, that 
cost is minimal and is outweighed by the interests of others whose 
safety may be at stake.

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 1995.
    In assessing the potential costs and benefits--both quantitative 
and qualitative--of these proposed regulations, the Secretary has

[[Page 10666]]
determined that the benefits of the proposed regulations justify the 
costs.
    To assist the Department in complying with 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.
    The potential costs and benefits of these proposed regulations are 
discussed elsewhere in this preamble under the following topic 
headings: Sec. 99.7 Annual notification of rights; Sec. 99.10 Right to 
inspect and review education records; Sec. 99.31 Prior consent not 
required for disclosure; and Sec. 99.36 Disclosure of information from 
disciplinary records.

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. 99.1 To which educational agencies 
or institutions 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, D.C. 20202-2241.

Regulatory and 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. 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

    Sections 99.7 and 99.32 contain information collection 
requirements. As required by the Paperwork Reduction Act of 1995 (44 
U.S.C. 3507(d)), the Department of Education has submitted a copy of 
these sections to the Office of Management and Budget (OMB) for its 
review.
    Collection of Information: Family Educational Rights and Privacy.
    SEAs, LEAs, postsecondary institutions, and other recipients may be 
affected by these regulations. The Department needs and uses the 
information to ensure compliance with requirements in FERPA. Annual 
public reporting burden for this collection of information is estimated 
to be .25 hours per response for 28,075 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. Thus, the total annual reporting and 
recordkeeping burden for this collection is estimated to be 7,018.75 
hours.
    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 10235, New Executive 
Office Building, Washington, DC 20503; Attention: Wendy Taylor, Desk 
Officer for U.S. Department of Education.
    The Department considers comments by the public on this proposed 
collection of information in--
     Evaluating whether the proposed collection of information 
is necessary for the proper performance of the functions of the 
Department, including whether the information will have a practical 
utility;
     Evaluating the accuracy of the Department's estimate of 
the burden of the proposed collection of information, including the 
validity of the methodology and assumptions used;
     Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
     Minimizing the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology; e.g., permitting 
electronic submission of responses.
    OMB is required to make a decision concerning the collection of 
information contained in these proposed regulations between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. This does not affect 
the deadline for the public to comment to the Department on the 
proposed regulations.

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 desire to ensure that 
parents are afforded their rights under the law with a desire to be as 
flexible as possible in imposing requirements on educational agencies 
and institutions. The Secretary believes this balance can be achieved 
through these proposed amendments to the regulations, in particular 
through the changes to the annual notification of rights and the 
removal of the requirement to adopt a written student records policy. 
The Secretary requests specific comments on these proposed changes to 
the notice, in particular regarding the extent to which they will 
affect schools and parents and students.
    As previously stated in the preamble, the Secretary would like 
comments on whether the proposed regulations regarding the requirement 
of SEAs to afford access to education records will create significant 
burden and disruption of operations on the SEAs and any suggestions as 
to how to minimize any such burdens or disruptions.
    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-10B, 600 Independence 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.

[[Page 10667]]


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 99

    Administrative practice and procedure, Education, Information, 
Privacy, Parents, Records, Reporting and recordkeeping requirements, 
Students.

    Dated: January 11, 1996.
Richard W. Riley,
Secretary of Education.
(Catalog of Federal Domestic Assistance Number does not apply)
    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 removing paragraph (b), redesignating 
paragraphs (c), (d), and (e) as paragraphs (b), (c), and (d), 
respectively, and by revising paragraph (a) to read as follows:


Sec. 99.1  To which educational agencies or institutions do these 
regulations apply?

    (a) Except as otherwise noted in Sec. 99.10, this part applies to 
an educational agency or institution to which funds have been made 
available under any program administered by the Secretary, if--
    (1) The educational institution provides educational services or 
instruction, or both, to students; or
    (2) The educational agency provides administrative control of or 
direction of, or performs service functions for, public elementary or 
secondary schools or postsecondary institutions.
* * * * *


Sec. 99.2  [Amended]

    3. Section 99.2 is amended by removing the number ``438'' and 
adding, in its place, the number ``444''.
    4. Section 99.3 is amended by removing in the definition of ``Act'' 
the number ``438'' and adding, in its place, the number ``444'' and by 
revising the definitions of ``Disclosure'' and ``Record'' to read as 
follows:


Sec. 99.3  What definitions apply to these regulations?

* * * * *
    Disclosure means to permit access to or the release, transfer, or 
other communication of personally identifiable information contained in 
education records to any party, by any means, including oral, written, 
or electronic means.
* * * * *
    Record means any information recorded in any way, including, but 
not limited to, handwriting, print, computer media, video or audio 
tape, film, microfilm, and microfiche.
* * * * *


Sec. 99.6  [Removed and reserved]

    5. Section 99.6 is removed and reserved.
    6. Section 99.7 is revised to read as follows:


Sec. 99.7  What must an educational agency or institution include in 
its annual notification?

    (a)(1) Each educational agency or institution shall annually notify 
parents of students currently in attendance, or eligible students 
currently in attendance, of their rights under the Act and this part.
    (2) The notice must inform parents or eligible students that they 
have the right to--
    (i) Inspect and review the student's education records;
    (ii) Seek amendment of the student's education records that the 
parent or eligible student believes to be inaccurate, misleading, or 
otherwise in violation of the student's privacy rights;
    (iii) Consent to disclosures of personally identifiable information 
contained in the student's education records, except to the extent that 
the Act and Sec. 99.31 authorize disclosure without consent; and
    (iv) File with the Department a complaint under Secs. 99.63 and 
99.64 concerning alleged failures by the educational agency or 
institution to comply with the requirements of the Act and this part.
    (3) The notice must include the following:
    (i) The procedure for exercising the right to inspect and review 
education records.
    (ii) The procedure for--
    (A) Requesting amendment of records under Sec. 99.20;
    (B) Obtaining a hearing regarding a denial of a request for 
amendment of records under Secs. 99.21 and 99.22; and
    (C) Adding a statement to the record under Sec. 99.21.
    (iii) The conditions in Sec. 99.31 under which the educational 
agency or institution may disclose education records without a parent's 
or eligible student's prior written consent.
    (iv) If the educational agency or institution has a policy of 
disclosing education records under Sec. 99.31(a)(1), a specification of 
criteria for determining who constitutes a school official and what 
constitutes a legitimate educational interest.
    (v) If the educational agency or institution has a policy of 
disclosing education records under Sec. 99.31(a)(11), in accordance 
with Sec. 99.37, a specification of--
    (A) The types of personally identifiable information the agency or 
institution has designated as directory information;
    (B) A parent's or eligible student's right to refuse to allow the 
agency or institution to designate specific types of information about 
the student as directory information; and
    (C) The period of time which a parent or eligible student has to 
notify the agency or institution that he or she does not want the 
agency or institution to designate specific types of information about 
the student as directory information.
    (b) An educational agency or institution may provide this notice by 
any means that are reasonably likely to inform the parents or eligible 
students of their rights.
    (1) An educational agency or institution shall effectively notify 
parents or eligible students who are disabled.
    (2) An agency or institution of elementary or secondary education 
shall effectively notify parents who have a primary or home language 
other than English.

(Authority: 20 U.S.C. 1232g(e) and (f)).

    7. Section 99.10 is amended by adding in paragraphs (c) and (e) ``, 
or SEA or its component'' following the word ``institution'' and by 
revising paragraphs (a), (b), and (d), and the authority citation to 
read as follows:


Sec. 99.10  What rights exist for a parent or eligible student to 
inspect and review education records?

    (a) Except as limited under Sec. 99.12, a parent or eligible 
student shall be given the opportunity to inspect and review the 
student's education records. This provision applies to--
    (1) Any educational agency or institution; and
    (2) Any State educational agency (SEA) and its components.
    (i) For the purposes of subpart B of this part, an SEA and its 
components constitute an educational agency or institution.
    (ii) An SEA and its components are subject to Subpart B of this 
part if the

[[Page 10668]]
SEA maintains education records on students who are or have been in 
attendance at any school of an educational agency or institution 
subject to the Act and this part.
    (b) The educational agency or institution, or SEA or its component, 
shall comply with a request for access to records within a reasonable 
period of time, but not more than 45 days after it has received the 
request.
* * * * *
    (d) If circumstances effectively prevent the parent or eligible 
student from exercising the right to inspect and review the student's 
education records, the educational agency or institution, or SEA or its 
component, shall--
    (1) Provide the parent or eligible student with a copy of the 
records requested; or
    (2) Make other arrangements for the parent or eligible student to 
inspect and review the requested records.
* * * * *
(Authority: 20 U.S.C. 1232g(a)(1)(A) and (B))


Sec. 99.12  [Amended]

    8. Section 99.12 is amended by removing in paragraph (a) the commas 
after ``inspect'' and after ``review'' and by adding after the word 
``inspect'' the word ``and'' and by revising the authority citation to 
read as follows:

(Authority: 20 U.S.C. 1232g(a)(1)(A), (B), (C), and (D))


Sec. 99.20  [Amended]

    9. Section 99.20 is amended by removing in paragraph (a) the words 
``or other rights''.


Sec. 99.21  [Amended]

    10. Section 99.21 is amended by removing in paragraphs (a), (b)(1), 
and (b)(2) the words ``or other''.
    11. Section 99.31 is amended by redesignating paragraph (a)(6)(iii) 
as paragraph (a)(6)(iv), by adding a new paragraph (a)(6)(iii) and by 
revising paragraphs (a)(5)(i) and (a)(9) and the authority citation to 
read as follows:


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

    (a) * * *
    (5)(i) The disclosure is to State and local officials or 
authorities to whom this information is specifically--
    (A) Allowed to be reported or disclosed pursuant to State statute 
adopted before November 19, 1974, if the allowed reporting or 
disclosure concerns the juvenile justice system and the system's 
ability to effectively serve the student whose records are released; or
    (B) Allowed to be reported or disclosed pursuant to State statute 
adopted after November 19, 1974, subject to the requirements of 
Sec. 99.38.
* * * * *
    (6) * * *
    (iii) If this Office determines that a third party outside the 
educational agency or institution to whom information is disclosed 
under this paragraph (a)(6) violates paragraph (a)(6)(ii)(B) of this 
section, the educational agency or institution may not allow that third 
party access to personally identifiable information from education 
records for at least five years.
* * * * *
    (9)(i) The disclosure is to comply with a judicial order or 
lawfully issued subpoena.
    (ii) The educational agency or institution may disclose information 
under paragraph (a)(9)(i) of this section only if the agency or 
institution makes a reasonable effort to notify the parent or eligible 
student of the order or subpoena in advance of compliance unless the 
disclosure is in compliance with--
    (A) A Federal grand jury subpoena and the court has ordered that 
the existence or the contents of the subpoena or the information 
furnished in response to the subpoena not be disclosed; or
    (B) Any other subpoena issued for a law enforcement purpose and the 
court has ordered that the existence or the contents of the subpoena or 
the information furnished in response to the subpoena not be disclosed.
    (iii) If the educational agency or institution initiates legal 
action against a parent or student and has complied with paragraph 
(a)(9)(ii) of this section, it may disclose education records to the 
court without a court order or subpoena.
* * * * *
(Authority: 20 U.S.C. 1232g (a)(5)(A), (b)(1), (b)(2), (b)(4)(B), 
and (f)).

    12. Section 99.32 is amended by removing the word ``or'' following 
paragraph (d)(3), replacing the period at the end of paragraph (d)(4) 
with a semicolon and adding the word ``or'' after the semicolon, adding 
a new paragraph (d)(5), and revising the authority citation to read as 
follows:


Sec. 99.32  What recordkeeping requirements exist concerning requests 
and disclosures?

* * * * *
    (d) * * *
    (5) A party seeking or receiving the records as directed by a 
Federal grand jury or other law enforcement subpoena and the issuing 
court has ordered that the existence or the contents of the subpoena or 
the information furnished in response to the subpoena not be disclosed.

(Authority: 20 U.S.C. 1232g (b)(1) and (b)(4)(A))

    13. Section 99.33 is amended by revising paragraphs (c) and (d) and 
by adding a new paragraph (e) to read as follows:


Sec. 99.33  What limitations apply to the redisclosure of information?

* * * * *
    (c) Paragraph (a) of this section does not apply to disclosures 
made pursuant to court orders or lawfully issued subpoenas under 
Sec. 99.31(a)(9), to disclosures of directory information under 
Sec. 99.31(a)(11), or to disclosures to a parent or student under 
Sec. 99.31(a)(12).
    (d) Except for disclosures under Sec. 99.31(a)(9), (11), and (12), 
an educational agency or institution shall inform a party to whom 
disclosure is made of the requirements of this section.
    (e) If this Office determines that a third party improperly 
rediscloses personally identifiable information from education records 
in violation of Sec. 99.33(a) of this section, the educational agency 
or institution may not allow that third party access to personally 
identifiable information from education records for at least five 
years.
    14. Section 99.34(a)(1)(ii) is amended by removing the word 
``policy'' and adding, in its place, the words ``annual notification''.
    15. Section 99.36 is amended by revising paragraph (b), adding 
paragraph (c) and revising the authority citation to read as follows:


Sec. 99.36  What conditions apply to disclosure of information in 
health and safety emergencies?

* * * * *
    (b) Nothing in this Act or this part shall prevent an educational 
agency or institution from--
    (1) Including in the education records of a student appropriate 
information concerning disciplinary action taken against the student 
for conduct that posed a significant risk to the safety or well-being 
of that student, other students, or other members of the school 
community;
    (2) Disclosing appropriate information maintained under paragraph 
(b)(1) of this section to teachers and school officials within the 
agency or institution who the agency or institution has determined have 
legitimate educational interests in the behavior of the student; or
    (3) Disclosing appropriate information maintained under paragraph 
(b)(1) of this section to teachers and school officials in other 
schools that have been determined to have legitimate

[[Page 10669]]
educational interests in the behavior of the student.
    (c) Paragraphs (a) and (b) of this section will be strictly 
construed.

(Authority: 20 U.S.C. 1232g (b)(1)(I) and (h))

    16. A new Sec. 99.38 is added to subpart D to read as follows:


Sec. 99.38  What conditions apply to disclosure of information as 
permitted by State statute adopted after November 19, 1974 concerning 
the juvenile justice system?

    (a) If reporting or disclosure allowed by State statute concerns 
the juvenile justice system and the system's ability to effectively 
serve, prior to adjudication, the student whose records are released, 
an educational agency or institution may disclose education records 
under Sec. 99.31(a)(5)(i)(B).
    (b) The officials and authorities to whom the records are disclosed 
shall certify in writing to the educational agency or institution that 
the information will not be disclosed to any other party, except as 
provided under State law, without the prior written consent of the 
parent of the student.

(Authority: 20 U.S.C. 1232g(b)(1)(J))


Sec. 99.63  [Amended]

    17. Section 99.63 is amended by removing the word ``person'' and 
adding, in its place, the words ``parent or eligible student''.
[FR Doc. 96-6034 Filed 3-13-96; 8:45 am]
BILLING CODE 4000-01-P