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NPRM;Family Educational Rights and Privacy Act

FR part
04
Publication Date: July 2003
FRPart: 04
RegPartsAffected:

Page Numbers: 44419-44422

NPRM;Family Educational Rights and Privacy Act

Posted on 07-31-2003


[Federal Register: July 28, 2003 (Volume 68, Number 144)]
[Proposed Rules]              
[Page 44419-44422]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28jy03-32]                        


[[Page 44419]]

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Part IV



Department of Education


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34 CFR Part 99



Family Educational Rights and Privacy Act; Proposed Rule


[[Page 44420]]


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DEPARTMENT OF EDUCATION

34 CFR Part 99

RIN 1855-AA00


Family Educational Rights and Privacy Act

AGENCY: Department of Education.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: The Secretary proposes to amend 34 CFR part 99 to implement
the Department's interpretation of the Family Educational Rights and
Privacy Act (FERPA) identified through administrative experience as
necessary for proper program operation. These regulations would provide
general guidelines for accepting ``signed and dated written consent''
under FERPA in electronic format.

DATES: We must receive your comments on or before September 26, 2003.

ADDRESSES: Address all comments about these proposed regulations to
LeRoy Rooker, U.S. Department of Education, 400 Maryland Avenue, SW.,
room 2W119, Washington, DC 20202-4605. If you prefer to send your
comments through the Internet, use the following address:

FERPA.Comments@ED.Gov
.
FOR FURTHER INFORMATION CONTACT: Kathleen Wolan, U.S. Department of
Education, 400 Maryland Avenue, SW., room 2W115, Washington, DC 20202-
4605. Telephone: (202) 260-3887.
    If you use a telecommunications device for the deaf (TDD), you may
call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
    Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed under FOR FURTHER
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Invitation To Comment

    We invite you to submit comments regarding these proposed
regulations. We also invite you to assist us in complying with the
specific requirements of Executive Order 12866 and its overall
requirement of reducing regulatory burden that might result from these
proposed regulations. Please let us know of any further opportunities
we should take to reduce potential costs or increase potential benefits
while preserving the effective and efficient administration of the
program.
    During and after the comment period, you may inspect all public
comments about these proposed regulations in room 2W115, 400 Maryland
Avenue,
SW., Washington, DC, between the hours of 8:30 a.m. and 4 p.m.,
Eastern time, Monday through Friday of each week except Federal
holidays.

Assistance to Individuals With Disabilities in Reviewing the Rulemaking
Record

    On request, we will supply 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 record for these proposed regulations. If you want to
schedule an appointment for this type of aid, please contact the person
listed under FOR FURTHER INFORMATION CONTACT.

Background

    The Department has developed these proposed regulations in
accordance with its ``Principles for Regulating,'' which are intended
to ensure that the Department regulates in the most flexible,
equitable, and least burdensome way possible. 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, these regulations minimize burden while protecting the rights
of parents and students.

Significant Proposed Regulations

    The following is a summary of the regulatory provisions the
Secretary proposes. These provisions interpret statutory text. The
Secretary is not authorized to change statutory requirements.
Commenters are asked to direct their comments to the regulatory
provisions that would implement or interpret the statute.
    Statute: FERPA provides that an agency or institution may not have
a policy or practice of disclosing personally identifiable information
from education records without the ``written consent'' of the parent or
eligible student, subject to specified exceptions. 20 U.S.C.
1232g(b)(1).
    Current Regulations: Regulations codified at 34 CFR 99.30 provide
that written consent must be ``signed and dated'' and must specify the
records to be disclosed, the purpose of the disclosure, and the party

or class of parties to whom the disclosure may be made.
    Proposed Regulations: Proposed Sec.  99.30(d) provides general
guidelines for educational agencies and institutions that choose to
meet the requirements of Sec.  99.30 with records and signatures in
electronic format.
    Reasons: The Department has received numerous inquiries whether
some form of electronic consent and signature, including e-mail,
satisfies FERPS's written consent requirement.
    The requirements of a valid signature, including various forms of
electronic signature, are generally established under State rather than
Federal law. However, Congress has enacted at least two Federal
statutes to encourage the use of electronic signatures and records. The
Government Paperwork Elimination Act (GPEA), Pub. L. 105-277 (effective
October 21, 1998) applies to filing forms electronically with Federal
agencies. The Electronic Signatures in Global and National Commerce Act
(E-Sign), Pub. L. 106-229 (effective October 1, 2000) validates and
establishes general standards for use of electronic signatures and
records in interstate commerce that remain in place pending a State's
adoption of some form of the Uniform Electronic Transactions Act
(UETA).
    E-Sign, UETA (where enacted in State law), and the GPEA validate
the use of electronic records and signatures in contracts and other
legal transactions. The Department concludes that educational agencies

and institutions may use electronic records and signatures for written
consents governed by FERPA to the extent that the procedures used for
creating and storing the electronic records and signatures comply with
these proposed regulations.
    This discussion, as well as the proposed amendment to Sec.  99.30,
constitutes general guidance for the use of electronic communications
in meeting certain FERPA requirements. The proposed amendment does not
specify desired methods but instead contains general guidelines,
adapted from concepts contained in E-Sign, GPEA, and UETA, to help
ensure that FERPA's privacy protections are not compromised when
records are disclosed pursuant to electronic communications. The Family
Policy Compliance Office may issue further guidance concerning
electronic records and signatures.
    FERPA is technology-neutral with respect to how to meet disclosure
and signature requirements. In cases where FERPA requires a signed and
dated written consent under Sec.  99.30 for a disclosure, such as
issuance of a transcript to an employer, there proposed regulations
specify that an agency or institution may accept electronic consents
and signatures when reasonable security is provided for the process. In
particular, the process must:

[[Page 44421]]

    [sbull] Establish a reasonable way to identify the individual and
authenticate the identity of the particular eligible student or parent
as the source of the electronic message or record requesting access or
consenting to the disclosure of education records (authentication);
    [sbull] Attribute the electronic signature to the unaltered message
or document to prevent repudiation by the sender (attribution);
    [sbull] Verify the integrity of the signed message or document in
transmission and upon receipt (integrity or security of transmission);
and
    [sbull] Document the requester's approval of the text contained in
the electronic message.
    While agencies and institutions are not limited to any particular

technology or method, the Department considers electronic signature
standards established under the Federal student loan programs to
satisfy the written consent requirement in FERPA. You may view those
standards on the Internet at the following Web site: http://www.ifap.ed.gov/dpcletters/gen0106.html


Executive Order 12866

1. Potential Costs and Benefits
    Under Executive Order 12866, we have assessed the potential costs
and benefits of these regulatory actions.
    The potential costs associated with these proposed regulations are
those resulting from statutory requirements and those we have
determined to be necessary for administering this program effectively
and efficiently.
    In assessing the potential costs and benefits--both quantitative
and qualitative--of these regulatory actions, we have determined that
the benefits would justify the costs.

Summary of Potential Costs and Benefits

    FERPA requires an educational agency or institution to obtain
``written and signed'' consent
from a parent or eligible student before
the educational agency or institution discloses education records.
These proposed regulations would provide additional flexibility for
educational institutions and agencies in meeting the existing consent
requirement. These proposed regulations would not require that an
educational institution or agency participate in the electronic format
option.
2. Clarity of the Regulations
    Executive Order 12866 and the Presidential Memorandum 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:
    [sbull] Are the requirements in these proposed regulations clearly
stated?
    [sbull] Do these proposed regulations contain technical terms or
other wording that interferes with their clarity?
    [sbull] Does the format of these proposed regulations (grouping and
order of sections, use of headings, paragraphing, etc.) aid or reduce
their clarity?
    [sbull] Would these 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.  99.30 Under what conditions is prior consent required to disclose
information?)
    [sbull] Could the description of these proposed regulations in the
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in
making these proposed regulations easier to understand? If so, how?
    [sbull] What else could we do to make these 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, these
regulations would not have a significant economic impact on the small
LEAs affected because these regulations would not impose excessive
regulatory burdens or require unnecessary Federal supervision. These
regulations would provide an electronic format option for records and
signatures and impose minimal requirements to ensure that LEAs comply
with the educational privacy protection requirements in FERPA.

Paperwork Reduction Act of 1995

    These proposed regulation do not contain any information collection requirements.


    These proposed regulations are not subject to Executive Order 12372
and the regulations in 34 CFR part 79.

Assessment of Educational Impact

    The Secretary particularly requests comments on whether these
proposed regulations would require transmission of information that any
other agency or authority of the United States gathers or makes
available.

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 the following site:
http://www.ed.gov/legislation/FedRegister

    To use PDF you must have Adobe Acrobat Reader, which is available
free at this site. If you have questions about using PDF, call the U.S.
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in
the Washington, DC, 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
tions do not contain any information
collection requirements.

Intergovernmental Review
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at:
http://www.gpoaccess.gov/fr/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,
Parents, Privacy, Records, Reporting and recordkeeping requirements,
Students.

    Dated: June 9, 2003.
Rod Paige,
Secretary of Education.

    For the reasons discussed in the preamble, the Secretary proposes
to amend part 99 of title 34 of the Code of Federal Regulations as
follows:
    1. The authority citation for part 99 continues to read as follows:

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

PART 99--[AMENDED]


    2. Section 99.30 is amended by adding a new paragraph (d) to read
as follows:


Sec.  99.30  Under what conditions is prior consent required to
disclose information?

* * * * *

[[Page 44422]]

    (d) ``Signed and dated written consent'' under this part may
include a record and signature in electronic form provided the
educational agency or institution follows a process to--
    (1) Identify the individual and authenticate the identity of the
individual requesting disclosure of education records;
    (2) Attribute the signature to the consent;
    (3) Secure and verify the integrity of the consent in transmission
and upon receipt; and
    (4) Document and record the signed message.

[FR Doc. 03-19082 Filed 7-25-03; 8:45 am]

Last Modified: 07/30/2003