FERPA: Notice of Proposed Rulemaking
4000-01P
DEPARTMENT OF EDUCATION
34 CFR Part 99
RIN 1880- XXX
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), (Pub. L. 105-244, effective October 1, 1998), and to clarify several existing provisions.
DATES: Comments must be received by the Department on or before (insert the 60th day from the date of publication in the Federal Register).
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 FERPA_Comments@ED.Gov.
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 between 8 a.m. and 8 p.m., Eastern time, Monday through Friday.
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 "crime of violence," "forcible sex offense," "nonforcible sex offense," and "final results" under '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 '99.31(a)(14) is sufficiently clear and whether it provides adequate guidance on this new allowed disclosure.
All comments submitted in response to these proposed regulations will be available for public inspection, during and after the comment period, in Room 2W107, 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, between 8 a.m. and 8 p.m., Eastern time, Monday through Friday.
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 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.
1. '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 FERPA generally does not apply to educational agencies that do not have direct administrative responsibilities for the educational services provided by public elementary and secondary schools, or by postsecondary institutions, and which are not organizationally linked to the agencies.
2. '99.3 Definitions
The Secretary proposes to amend the definition of the term "directory information" by adding additional items which may be designated by an educational agency or institution as "directory information" and to clarify the meaning of "dates of attendance." The directory 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 a student's daily attendance record.
The Secretary also proposes to clarify the definition of sole possession records. Sole possession records are memory aids or reference tools and do not contain information taken directly from a student, records about the existence of which a student is aware, or records which are used to make decisions about the student.
3. '99.5 Rights of students
The Secretary proposes to clarify the provision in '99.5 concerning 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. For instance, an individual who has been rejected for admission by a component of an educational agency or institution does not have rights under FERPA with respect to that application, even if that individual is otherwise a student at the agency or institution.
4. '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. The Secretary does not define the term "law enforcement purpose" in the regulations but interprets the statute to mean that schools may disclose information to authorized representatives of the Attorney General for the enforcement of federal law.
5. '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 to either parents of a dependent student, regardless of the parent's status as a custodial parent.
6. '99.31(a)(9)(iv) Prior consent not required for disclosures that are necessary for the educational agency or institution to defend itself
The new regulatory provision states that FERPA permits an educational agency or institution to release education records to a court, without a parent's or 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.
7. '99.31(a)(13) and '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 or a nonforcible sex offense, 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 such crime or offense.
A new section ('99.39) provides guidance to institutions regarding this change, and lists the applicable definitions. The Secretary particularly welcomes comment on this provision.
8. '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, without the student's consent, information regarding the student=s violation of any Federal, State, or local law, or any rule or policy governing the use or possession of alcohol or a controlled substance.
Under the current regulations, 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 '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 '99.31(a)(10), an institution may release information to a parent or guardian in connection with a health or safety emergency. This new provision adds a new exception to the prior consent requirement of FERPA.
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. 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 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 "§" and a numbered heading; for example, '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, 400 Maryland Avenue, SW., 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
These proposed regulations have been examined under the Paperwork Reduction Act of 1995 and have been found to contain no 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
Anyone may view this document, as well as all other Department of Education documents published in the Federal Register, in text or portable document format (pdf) on the World Wide Web at either of the following sites: http://gcs.ed.gov/fedreg.htm
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 toll free at 1-888-293-6498.
Anyone may also view these documents in text copy only on an electronic bulletin board of the Department. Telephone: (202) 219-1511 or, toll free, 1-800-222-4922. The documents are located under Option G--Files/Announcements, Bulletins and Press Releases.
Note: The official version of this document is the document published in the Federal Register.
List of Subjects in 34 CFR Part 99
Administrative practice and procedure, Education, Information, Privacy, Parents, Records, Reporting and recordkeeping requirements, Students.
Dated:
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 revising paragraph (a)(2) to read as follows:
§99.1 To which educational agencies or institutions do these regulations apply?
(a) * * *
(2) The educational agency has direct administrative responsibilities for the educational services provided by public elementary or secondary schools, or by postsecondary institutions, that are organizationally linked to it.
3. Section 99.3 is amended by revising the definition of "Directory information", and by amending paragraph (b)(1) under the definition of AEducation records@ in alphabetical order to read as follows:
§99.3 What definitions apply to these regulations?
* * * * *
Directory information. (a)(1) The term means information contained in an education record of a student which 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, grade level, enrollment status (undergraduate, graduate), full-time/part-time, participation in officially recognized activities and sports, photograph, dates of attendance, degrees, honors and awards received, and the most recent previous educational agency or institution attended.
(2) "Dates of attendance" refers to the larger period of time during which an individual attended or was enrolled in an educational agency or institution. Examples of "dates of attendance" include the 1998-99 academic year, the spring semester, or first quarter. 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 cannot 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-- which are not used for purposes other than a memory or reference tool, which are not accessible or revealed to any other person except a temporary substitute for the maker of the record, and which are typically maintained by the school official unbeknownst to other individuals. Records containing information taken directly from a student, about the existence of which a student is aware, or which are used to make decisions about the student are not sole possession records.
* * * * *
4. Section 99.5(c) is amended by revising paragraph (c) to read as follows:
§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), revising paragraph (a)(13), adding a new paragraph (a)(9)(iii) as paragraph (a)(9)(iv), adding a new paragraph (a)(14), adding a new paragraph (a)(14), and revising paragraph (b) to read as follows:
§99.31 Under what conditions is prior consent not required to disclose information?
(a) * * *
(3) The disclosure is, subject to the requirements of §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 the parent=s status as custodial parent.
* * * * *
(9)(iv) If a parent or eligible student initiates legal action against the educational agency or institution, the educational agency or institution may disclose 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 to a disciplinary proceeding conducted by an institution of postsecondary education against a student who is an alleged perpetrator of a crime of violence, or a nonforcible sex offense, as set forth in the conditions described in '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 such use or possession.
(ii) Paragraph (a)(15)(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 (15) of this section.
6. A new §99.39 is added to read as follows:
§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 any disciplinary proceeding conducted by the institution against a student who is an alleged perpetrator of a crime of violence or a nonforcible sex offense, without the prior written consent of the student, if the institution determines as a result of that disciplinary proceeding that the student committed a violation of the institution's rules or policies with respect to such crime or offense.
(b)(1) 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: murder, manslaughter, forcible sex offense, kidnaping, robbery, aggravated assault, burglary of an occupied structure or dwelling, and arson.
(2) Forcible sex offense includes forcible rape, forcible sodomy, sexual assault with an object, and forcible fondling, as those terms are defined in Appendix E to 34 CFR Part 668.
(3) Nonforcible sex offense means nonforcible sexual intercourse for which a person can be charged with a criminal offense by the State, such as sexual intercourse with a victim who has been made incapacitated.
(4) 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 shall 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 requests received by an institution
of postsecondary education after October 1, 1998.