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.
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[Federal Register: June 1, 1999 (Volume 64, Number 104)]
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Department of Education
34 CFR Part 99
Family Educational Rights and Privacy; Proposed Rule
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
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
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
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
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
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.
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'
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
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
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
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
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
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:
<bullet> Are the requirements in the proposed regulations clearly
<bullet> Do the proposed regulations contain technical terms or
other wording that interferes with their clarity?
<bullet> Does the format of the proposed regulations (grouping and
order of sections, use of headings, paragraphing, etc.) aid or reduce
<bullet> 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,
<bullet> 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?
<bullet> 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
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
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.
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(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,
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
Sec. 99.1 To which educational agencies or institutions do these
(a) * * *
(2) The educational agency provides administrative control of or
direction of public elementary or secondary schools or by postsecondary
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
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))
* * * * *
* * * * *
(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
* * * * *
4. Section 99.5 is amended by revising paragraph (c) to read as
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
(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
(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
* * * * *
(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
(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
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
(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