[Federal Register Volume 64, Number 104 (Tuesday, June 1, 1999)]
[Proposed Rules]
[Pages 29532-29535]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13853]



[[Page 29531]]

_______________________________________________________________________

Part VIII





Department of Education





_______________________________________________________________________



34 CFR Part 99



Family Educational Rights and Privacy; Proposed Rule

  Federal Register / Vol. 64, No. 104 / Tuesday, June 1, 1999 / 
Proposed Rules  

[[Page 29532]]



DEPARTMENT OF EDUCATION

34 CFR Part 99


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 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

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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

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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

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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]
BILLING CODE 4000-01-P