19726 Federal Register / Vol. 76, No. 68 / Friday, April 8, 2011 / Proposed Rules 

In accordance with 14 CFR 39.19, send your 

request to your principal inspector or local 

Flight Standards District Office, as 

appropriate. If sending information directly 

to the International Branch, send it to ATTN: 

Dan Rodina, Aerospace Engineer, 

International Branch, ANM–116, Transport 

Airplane Directorate, FAA, 1601 Lind 

Avenue, SW., Renton, Washington 98057– 

3356; telephone (425) 227–2125; fax (425) 

227–1149. Information may be e-mailed to: 9- 

ANM-116-AMOC-REQUESTS@faa.gov. 

Before using any approved AMOC, notify 

your appropriate principal inspector, or 

lacking a principal inspector, the manager of 

the local flight standards district office/ 

certificate holding district office. The AMOC 

approval letter must specifically reference 

this AD. 

(2) Airworthy Product: For any requirement 

in this AD to obtain corrective actions from 

a manufacturer or other source, use these 

actions if they are FAA-approved. Corrective 

actions are considered FAA-approved if they 

are approved by the State of Design Authority 

(or their delegated agent). You are required 

to assure the product is airworthy before it 

is returned to service. 

Related Information 

(i) Refer to MCAI European Aviation Safety 

Agency (EASA) Airworthiness Directive 

2010–0224, dated November 4, 2010; and 

Airbus Mandatory Service Bulletins A300– 

27–6066 and A310–27–2103, both dated June 

10, 2010. 

Issued in Renton, Washington, on March 

31, 2011. 

Kalene C. Yanamura, 

Acting Manager, Transport Airplane 

Directorate, Aircraft Certification Service. 

[FR Doc. 2011–8416 Filed 4–7–11; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF EDUCATION 

34 CFR Part 99 

RIN 1880–AA86 

[Docket ID ED–2011–OM–0002] 

Family Educational Rights and Privacy 

AGENCY: Office of Management, 

Department of Education. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Secretary proposes to 

amend the regulations implementing 

section 444 of the General Education 

Provisions Act, which is also known as 

the Family Educational Rights and 

Privacy Act of 1974, as amended 

(FERPA). These proposed amendments 

are necessary to ensure that the 

Department’s implementation of FERPA 

continues to protect the privacy of 

education records, as intended by 

Congress, while allowing for the 

effective use of data in statewide 

longitudinal data systems (SLDS) as 

envisioned in the America Creating 

Opportunities to Meaningfully Promote 

Excellence in Technology, Education, 

and Science Act (COMPETES Act) and 

furthermore supported under the 

American Recovery and Reinvestment 

Act of 2009 (ARRA). Improved access to 

data contained within an SLDS will 

facilitate States’ ability to evaluate 

education programs, to build upon what 

works and discard what does not, to 

increase accountability and 

transparency, and to contribute to a 

culture of innovation and continuous 

improvement in education. These 

proposed amendments would enable 

authorized representatives of State and 

local educational authorities, and 

organizations conducting studies, to use 

SLDS data to achieve these important 

outcomes while protecting privacy 

under FERPA through an expansion of 

the requirements for written agreements 

and the Department’s enforcement 

mechanisms. 

DATES: We must receive your comments 

on or before May 23, 2011. Comments 

received after this date will not be 

considered. 

ADDRESSES: Submit your comments 

through the Federal eRulemaking Portal 

or via postal mail, commercial delivery, 

or hand delivery. We will not accept 

comments by fax or by e-mail. Please 

submit your comments only one time, in 

order to ensure that we do not receive 

duplicate copies. In addition, please 

include the Docket ID at the top of your 

comments. 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov to submit 

your comments electronically. 

Information on using Regulations.gov, 

including instructions for accessing 

agency documents, submitting 

comments, and viewing the docket, is 

available on the site under ‘‘How To Use 

This Site.’’ 

• Postal Mail, Commercial Delivery, 

or Hand Delivery. If you mail or deliver 

your comments about these proposed 

regulations, address them to Regina 

Miles, U.S. Department of Education, 

400 Maryland Avenue, SW., 

Washington, DC 20202. 

Privacy Note: The Department’s policy for 

comments received from members of the 

public (including those comments submitted 

by mail, commercial delivery, or hand 

delivery) is to make these submissions 

available for public viewing in their entirety 

on the Federal eRulemaking Portal at 

http://www.regulations.gov. Therefore, 

commenters should be careful to include in 

their comments only information that they 

wish to make publicly available on the 

Internet. 

FOR FURTHER INFORMATION CONTACT: 

Ellen Campbell, U.S. Department of 

Education, 400 Maryland Avenue, SW., 

Washington, DC 20202. Telephone: 

(202) 260–3887 or via Internet: 

FERPA@ed.gov. 

If you use a telecommunications 

device for the deaf, call the Federal 

Relay Service (FRS), toll free, at 1–800– 

877–8339. 

Individuals with disabilities can 

obtain this document in an accessible 

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. 

To ensure that your comments have 

maximum effect in developing the final 

regulations, we urge you to identify 

clearly the specific section or sections of 

the proposed regulations that each of 

your comments addresses and to arrange 

your comments in the same order as the 

proposed regulations. 

We 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 by 

accessing http://www.regulations.gov. 

You may also inspect the comments in 

person in room 6W243, 400 Maryland 

Avenue, SW., Washington, DC, 20202 

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: On February 17, 2009, 

the President signed the ARRA (Pub. L. 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 76, No. 68 / Friday, April 8, 2011 / Proposed Rules 19727 

111–5) into law. The ARRA includes 

significant provisions relating to the 

expansion and development of SLDS. 

Under title XIV of the ARRA, in order 

for a State to receive funding under the 

State Fiscal Stabilization Fund program 

(SFSF), the State’s Governor must 

provide an assurance in the State’s 

application for SFSF funding that the 

State will establish an SLDS that meets 

the requirements of section 

6401(e)(2)(D) of the COMPETES Act (20 

U.S.C. 9871(e)(2)(D)). 

With respect to public preschool 

through grade 12 and postsecondary 

education, COMPETES requires that the 

SLDS include: (a) A unique statewide 

student identifier that, by itself, does 

not permit a student to be individually 

identified by users of the system; (b) 

student-level enrollment, demographic, 

and program participation information; 

(c) student-level information about the 

points at which students exit, transfer 

in, transfer out, drop out, or complete 

P–16 education programs; (d) the 

capacity to communicate with higher 

education data systems; and (e) a State 

data audit system assessing data quality, 

validity, and reliability. 

With respect to public preschool 

through grade 12 education, COMPETES 

requires that the SLDS include: (a) 

Yearly test records of individual 

students with respect to assessments 

under section 1111(b) of the Elementary 

and Secondary Education Act of 1965, 

as amended (20 U.S.C. 6311(b)); (b) 

information on students not tested by 

grade and subject; (c) a teacher identifier 

system with the ability to match 

teachers to students; (d) student-level 

transcript information, including 

information on courses completed and 

grades earned; and (e) student-level 

college readiness test scores. 

With respect to postsecondary 

education, COMPETES requires that the 

SLDS include: (a) Information regarding 

the extent to which students transition 

successfully from secondary school to 

postsecondary education, including 

whether students enroll in remedial 

coursework; and (b) other information 

determined necessary to address 

alignment and adequate preparation for 

success in postsecondary education. 

Separate provisions in title VIII of the 

ARRA appropriated $250 million for 

additional grants to State educational 

agencies (SEAs) under the Statewide 

Longitudinal Data Systems program, 

authorized under section 208 of the 

Educational Technical Assistance Act of 

2002 (20 U.S.C. 9601, et seq.) to support 

the expansion of SLDS to include 

postsecondary and workforce 

information. 

The extent of data sharing 

contemplated by these and other 

Federal initiatives prompted the 

Department to review the impact that its 

FERPA regulations could have on the 

development and use of SLDS. FERPA 

is a Federal law that protects student 

privacy by prohibiting educational 

agencies and institutions from having a 

practice or policy of disclosing 

personally identifiable information in 

student education records (‘‘PII’’) unless 

a parent or eligible student provides 

prior written consent or a statutory 

exception applies. In those 

circumstances in which educational 

agencies and institutions may disclose 

PII to third parties without consent, 

FERPA and its implementing 

regulations limit the redisclosure of PII 

by the recipients, except as set forth in 

§§ 99.33(c) and (d) and 99.35(c)(2) (see 

20 U.S.C. 1232g(b)(3) and (b)(4)(B) and 

§§ 99.33 and 99.35(c)(2)). For example, 

State and local educational authorities 

that receive PII without consent from 

the parent or eligible student under the 

‘‘audit or evaluation’’ exception may not 

make further disclosures of the PII on 

behalf of the educational agency or 

institution unless prior written consent 

from the parent or eligible student is 

obtained, Federal law specifically 

authorized the collection of the PII, or 

a statutory exception applies and the 

redisclosure and recordation 

requirements are met (see 20 U.S.C. 

1232g(b)(3) and (b)(4) and §§ 99.32(b)(2), 

99.33(b)(1)), and 99.35(c)). 

In light of the ARRA, the Department 

has conducted a review of its FERPA 

regulations in 34 CFR part 99, including 

changes reflected in the final regulations 

published on December 9, 2008 (73 FR 

74806). Further, the Department has 

reviewed its guidance interpreting 

FERPA, including statements made in 

the preamble discussion to the final 

regulations published on December 9, 

2008 (73 FR 74806). 

Based on its review, the Department 

has determined that the Department’s 

December 2008 changes to the FERPA 

regulations promote the development 

and expansion of robust SLDS in the 

following ways: 

• Expanding the redisclosure 

authority in FERPA by amending 

§ 99.35 to permit State and local 

educational authorities and other 

officials listed in § 99.31(a)(3) to make 

further disclosures of personally 

identifiable information from education 

records, without the consent of parents 

or eligible students, on behalf of the 

educational agency or institution from 

which the PII was obtained under 

specified conditions (see §§ 99.33(b)(1) 

and 99.35(b)(1)). 

• Permitting SEAs and other State 

educational authorities, as well as the 

other officials listed in § 99.31(a)(3), to 

record their redisclosures at the time 

they are made and by groups (i.e., by the 

student’s class, school district, or other 

appropriate grouping rather than by the 

name of each student whose record was 

redisclosed); and only requiring them to 

send these records of redisclosure to the 

educational agencies or institutions 

from which the PII was obtained upon 

the request of an educational agency or 

institution (see § 99.32(b)(2)). 

Notwithstanding these provisions in 

the Department’s FERPA regulations 

and the preamble discussion relating to 

the December 2008 changes to the 

regulations, the Department’s review 

indicates that there are a small number 

of other regulatory provisions and 

policy statements that unnecessarily 

hinder the development and expansion 

of SLDS consistent with the ARRA. 

Because the Department has determined 

that these regulatory provisions and 

policies are not necessary to ensure 

privacy protections for PII, it proposes 

to amend 34 CFR part 99 to make the 

changes described in the following 

section. 

Significant Proposed Regulations 

We discuss substantive issues under 

the sections of the proposed regulations 

to which they pertain. Generally, we do 

not address proposed regulatory 

provisions that are technical or 

otherwise minor in effect. 

Definitions (§ 99.3) 

Authorized Representative (§§ 99.3, 

99.35) 

Statute: Sections (b)(1)(C), (b)(3) and 

(b)(5) of FERPA (20 U.S.C. 

1232g(b)(1)(C), (b)(3) and (b)(5)) permit 

educational agencies and institutions 

nonconsensually to disclose PII to 

‘‘authorized representatives’’ of State 

and local educational authorities, the 

Secretary, the Attorney General of the 

United States, and the Comptroller 

General of the United States, as may be 

necessary in connection with the audit, 

evaluation, or the enforcement of 

Federal legal requirements related to 

Federal or State supported education 

programs. The statute does not define 

the term authorized representative. 

Current Regulations: The term 

authorized representative, which is 

used in current §§ 99.31(a)(3) and 

99.35(a)(1), is not defined in the current 

regulations. Current §§ 99.31(a)(3) and 

99.35(a)(1), together, implement 

sections (b)(1)(C), (b)(3) and (b)(5) of 

FERPA (20 U.S.C. 1232g(b)(1)(C), (b)(3) 

and (b)(5)). 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

19728 Federal Register / Vol. 76, No. 68 / Friday, April 8, 2011 / Proposed Rules 

Proposed Regulations: We propose to 

amend § 99.3 to add a definition of the 

term authorized representative. Under 

the proposed definition, an authorized 

representative would mean any entity or 

individual designated by a State or local 

educational authority or agency headed 

by an official listed in § 99.31(a)(3) to 

conduct—with respect to Federal or 

State supported education programs— 

any audit, evaluation, or compliance or 

enforcement activity in connection with 

Federal legal requirements that relate to 

those programs. 

In order to help ensure proper 

implementation of FERPA requirements 

that protect student privacy, we also 

propose to amend § 99.35 (What 

conditions apply to disclosure of 

information for Federal or State program 

purposes?). Specifically, we would 

provide, in proposed § 99.35(a)(2), that 

responsibility remains with the State or 

local educational authority or agency 

headed by an official listed in 

§ 99.31(a)(3) to use reasonable methods 

to ensure that any entity designated as 

its authorized representative remains 

compliant with FERPA. We are not 

proposing to define ‘‘reasonable 

methods’’ in the proposed regulations in 

order to provide flexibility for a State or 

local educational authority or an agency 

headed by an official listed in 

§ 99.31(a)(3) to make these 

determinations. However, we are 

interested in receiving comments on 

what would be considered reasonable 

methods. The Department anticipates 

issuing non-regulatory guidance on this 

and other related matters when we issue 

the final regulations or soon thereafter. 

We also would amend § 99.35 to 

require written agreements between a 

State or local educational authority or 

agency headed by an official listed in 

§ 99.31(a)(3) and its authorized 

representative, other than an employee 

(see proposed § 99.35(a)(3)). We propose 

that these agreements: designate the 

individual or entity as an authorized 

representative; specify the information 

to be disclosed and that the purpose for 

which the PII is disclosed to the 

authorized representative is only to 

carry out an audit or evaluation of 

Federal or State supported education 

programs, or to enforce or to comply 

with Federal legal requirements that 

relate to those programs; require the 

return or destruction of the PII when no 

longer needed for the specified purpose 

in accordance with the requirements of 

§ 99.35(b)(2); specify the time period in 

which the PII must be returned or 

destroyed; and establish policies and 

procedures (consistent with FERPA and 

other Federal and State confidentiality 

and privacy provisions) to protect the 

PII from further disclosure (except back 

to the disclosing entity) and 

unauthorized use, including limiting the 

use of PII to only those authorized 

representatives with legitimate interests 

(see proposed § 99.35(a)(3)). 

We would propose a minor change to 

§ 99.35(b) to clarify that the requirement 

to protect PII from disclosure applies to 

authorized representatives. 

Finally, proposed § 99.35(d) would 

clarify that if the Department’s Family 

Policy Compliance Office (FPCO) finds 

that a State or local educational 

authority, an agency headed by an 

official listed in § 99.31(a)(3), or an 

authorized representative of a State or 

local educational authority or agency 

headed by an official listed in 

§ 99.31(a)(3) improperly rediscloses PII 

in violation of FERPA, the educational 

agency or institution from which the PII 

originated would be prohibited from 

permitting the entity responsible for the 

improper redisclosure (i.e., the 

authorized representative, or the State 

or local educational authority or the 

agency headed by an officials listed in 

§ 99.31(a)(3), or both) access to the PII 

for at least five years (see 20 U.S.C. 

1232g(b)(4)(B) and § 99.33(e)). 

Reasons: Under current §§ 99.31(a)(3) 

and 99.35(a)(1) and 20 U.S.C. 

1232g(b)(1)(C), (b)(3), and (b)(5), an 

educational agency or institution may 

disclose PII to an authorized 

representative of a State or local 

educational authority or an agency 

headed by an official listed in 

§ 99.31(a)(3), without prior written 

consent, for the purposes of 

conducting—with respect to Federal or 

State supported education programs— 

any audit, evaluation, or compliance or 

enforcement activity in connection with 

Federal legal requirements that relate to 

those education programs, provided that 

such disclosures are subject to the 

applicable privacy protections in 

FERPA. Although the term authorized 

representative is not defined in FERPA 

or the current regulations, the 

Department’s longstanding 

interpretation of this term has been that 

it does not include other State or 

Federal agencies because these agencies 

are not under the direct control (e.g., 

they are not employees or contractors) 

of a State educational authority (or other 

agencies headed by officials listed in 

§ 99.31(a)(3)). (Memorandum from 

William D. Hansen, Deputy Secretary of 

Education, to State officials, January 30, 

2003, (‘‘Hansen memorandum’’)). Under 

this interpretation of the term 

authorized representative, as it is used 

in current §§ 99.31(a)(3) and 99.35(a)(1) 

(and 1232g(b)(1)(C), (b)(3), and (b)(5)), 

an SEA or other State educational 

authority may not make further 

disclosures of PII to other State 

agencies, such as State health and 

human services departments, because 

these agencies are not employees or 

contractors to which the State 

educational authority has outsourced 

the audit or evaluation of education 

programs (or other institutional services 

or functions). (This interpretation was 

later incorporated in the preamble to the 

final FERPA regulations published on 

December 9, 2008 (73 FR 74806, 

74825).) 

As explained in further detail in the 

following paragraphs, the Department 

has concluded that FERPA does not 

require that an authorized 

representative be under the educational 

authority’s direct control in order to 

receive PII for purposes of audit or 

evaluation. We also do not believe such 

a restrictive interpretation is warranted 

given Congress’ intent in the ARRA to 

have States link data across sectors. 

Through these regulations, therefore, we 

are proposing to rescind the policy 

established in the January 30, 2003, 

Hansen memorandum and the preamble 

to the final FERPA regulations 

published on December 9, 2008 (73 FR 

74806, 74825). These proposed 

regulations also would expressly permit 

State and local educational authorities 

and other agencies headed by officials 

listed in § 99.31(a)(3) to exercise the 

flexibility and discretion to designate 

other individuals and entities, including 

other governmental agencies, as their 

authorized representatives for 

evaluation, audit, or legal enforcement 

or compliance purposes of a Federal or 

State-supported education program, 

subject to the requirements in FERPA 

and its implementing regulations. 

We first note that nothing in FERPA 

prescribes which agencies, 

organizations, or individuals may serve 

as an authorized representative of a 

State or local educational authority or 

an agency headed by an official listed in 

§ 99.31(a)(3), or whether an authorized 

representative must be a public or 

private entity or official. Moreover, the 

Department believes that it is 

unnecessarily restrictive to interpret 

FERPA as prohibiting an individual or 

entity who is not an employee or 

contractor under the ‘‘direct control’’ of 

a State or local educational authority or 

agency headed by an official listed in 

§ 99.31(a)(3) from serving as an 

authorized representative. 

One of the key purposes of FERPA is 

to ensure the privacy of personally 

identifiable information in student 

education records. Therefore, the 

determination of who can serve as an 

authorized representative should be 

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Federal Register / Vol. 76, No. 68 / Friday, April 8, 2011 / Proposed Rules 19729 

made in light of that purpose. 

Accordingly, we believe it is 

appropriate to require that any State or 

local educational authority or agency 

headed by an official listed in 

§ 99.31(a)(3) that designates an 

individual or entity as an authorized 

representative— 

• Be responsible for using reasonable 

methods to ensure that the designated 

individual or entity— 

Æ Uses PII only for purposes of the 

audit, evaluation, or compliance or 

enforcement activity in question; 

Æ Destroys or returns PII when no 

longer needed for these purposes; and 

Æ Protects PII from redisclosure (and 

use by any other third party), except as 

permitted in § 99.35(b)(1) (i.e., back to 

the disclosing entity) (see proposed 

§ 99.35(a)(2)); and 

• Use a written agreement that 

designates any authorized 

representative other than an employee 

and includes the privacy protections set 

forth in proposed § 99.35(a)(3) (i.e., to 

use reasonable methods to limit its 

authorized representative’s use of PII for 

these purposes, to require the return or 

destruction of PII when it is no longer 

needed for these purposes, and to 

establish policies and procedures 

consistent with FERPA and other 

Federal and State confidentiality and 

privacy provisions) to protect PII from 

further disclosure (except back to the 

disclosing entity). If a State or local 

educational authority or agency headed 

by an official listed in § 99.31(a)(3) is 

able to comply with these requirements 

(i.e., to use reasonable methods to limit 

its authorized representative’s use of PII 

for these purposes, to establish policies 

and procedures to protect PII from 

further disclosure and to require the 

return or destruction of PII when it is no 

longer needed for these purposes), then 

there is no reason why a State health 

and human services or labor 

department, for example, should be 

precluded from serving as the 

authority’s authorized representative 

and receiving non-consensual 

disclosures of PII to link education, 

workforce, health, family services, and 

other data for the purpose of evaluating, 

auditing, or enforcing Federal legal 

requirements related to, Federal or State 

supported education programs. 

Furthermore, under proposed 

§ 99.35(d), we would clarify that in the 

event that the Family Policy 

Compliance Office finds an improper 

redisclosure, the Department would 

prohibit the educational agency or 

institution from which the PII originated 

from permitting the party responsible 

for the improper redisclosure (i.e., the 

authorized representative, or the State 

or local educational authority or agency 

headed by an official listed in 

§ 99.31(a)(3), or both) access to the PII 

for at least five years. 

With these proposed changes to the 

privacy provisions in § 99.35, we 

believe that PII, including PII in SLDS, 

will be appropriately protected while 

giving each State the needed flexibility 

to house information in a SLDS that best 

meets the needs of the particular State. 

FERPA does not constrain State 

administrative choices regarding the 

data system architecture, data strategy, 

or technology for SLDS as long as the 

required designation, purpose, and 

privacy protections are in place. The 

proposed amendments to § 99.35 would 

require that these protections are in 

place. 

Directory Information (§ 99.3) 

Statute: Sections (a)(5)(A), (b)(1), and 

(b)(2) of FERPA (20 U.S.C. 1232g(a)(5), 

(b)(1), and (b)(2)) permit educational 

agencies and institutions 

nonconsensually to disclose information 

defined as directory information, such 

as a student’s name and address, 

telephone listing, date and place of 

birth, and major field of study, provided 

that specified public notice and opt out 

conditions have been met. 

Current Regulations: Directory 

information is defined in current § 99.3 

as information contained in an 

education record of a student that 

would not generally be considered 

harmful or an invasion of privacy if 

disclosed, and includes information 

listed in section (a)(5)(A) of FERPA (20 

U.S.C. 1232g(a)(5)(A)) (e.g., a student’s 

name and address, telephone listing) as 

well as other information, such as a 

student’s electronic mail (e-mail) 

address, enrollment status, and 

photograph. Current regulations also 

specify that a student’s Social Security 

Number (SSN) or student identification 

(ID) number may not be designated and 

disclosed as directory information. 

However, the current regulations state 

that a student ID number, user ID, or 

other unique personal identifier used by 

the student for purposes of accessing or 

communicating in electronic systems 

may be designated and disclosed as 

directory information if the identifier 

cannot be used to gain access to 

education records except when used in 

conjunction with one or more factors to 

authenticate the user’s identity. 

Proposed Regulations: The proposed 

regulations would modify the definition 

of directory information to clarify that 

an educational agency or institution 

may designate as directory information 

and nonconsensually disclose a student 

ID number or other unique personal 

identifier that is displayed on a student 

ID card or badge if the identifier cannot 

be used to gain access to education 

records except when used in 

conjunction with one or more factors 

that authenticate the user’s identity, 

such as a PIN, password, or other factor 

known or possessed only by the 

authorized user. 

Reasons: Directory information items, 

such as name, photograph, and student 

ID number, are the types of information 

that are typically displayed on a student 

ID card or badge. For the reasons 

outlined in our discussion later in this 

notice regarding the proposed changes 

in § 99.37(c), the proposed change to the 

definition of directory information is 

needed to clarify that FERPA permits 

educational agencies and institutions to 

designate student ID numbers as 

directory information in the public 

notice provided to parents and eligible 

students in attendance at the agency or 

institution under § 99.37(a)(1). 

Including the designation of student ID 

numbers as a directory information item 

will permit schools to disclose as 

directory information a student ID 

number on a student ID card or badge 

if the student ID number cannot be used 

to gain access to education records 

except when used in conjunction with 

one or more factors that authenticate the 

user’s identity. In situations where a 

student’s social security number is used 

as the student’s ID number, that number 

may not be designated as directory 

information, even for purposes of a 

student’s ID card or badge. 

Education Program (§§ 99.3, 99.35) 

Statute: The statute does not define 

the term education program. 

Current Regulations: The term 

education program, which is used in 

current § 99.35(a)(1), is not defined in 

the current regulations. Current 

§ 99.35(a)(1) provides that authorized 

representatives of the officials or 

agencies headed by officials listed in 

§ 99.31(a)(3) may have non-consensual 

access to personally identifiable 

information from education records in 

connection with an audit or evaluation 

of Federal or State supported ‘‘education 

programs’’, or for the enforcement of or 

compliance with Federal legal 

requirements that relate to those 

programs. 

Proposed Regulations: We propose to 

define the term education program to 

mean any program that is principally 

engaged in the provision of education, 

including, but not limited to early 

childhood education, elementary and 

secondary education, postsecondary 

education, special education, job 

training, career and technical education, 

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19730 Federal Register / Vol. 76, No. 68 / Friday, April 8, 2011 / Proposed Rules 

1We intend for the proposed definition of the 

term education program to include, but not be 

limited to, any applicable program, as that term is 

defined in section 400 of the General Education 

Provisions Act (20 U.S.C. 1221). 

and adult education, regardless of 

whether the program is administered by 

an educational authority. 

Reasons: The proposed definition of 

education program in § 99.3 is intended 

to establish that a program need not be 

administered by an educational agency 

or institution in order for it to be 

considered an education program for 

purposes of § 99.35(a)(1) and 20 U.S.C. 

1232g(b)(1). The Secretary recognizes 

that education may begin before 

kindergarten and may involve learning 

outside of postsecondary institutions. 

However, in many States, programs that 

the Secretary would regard as education 

programs are not administered by SEAs 

or LEAs. For example, in many States, 

State-level health and human services 

departments administer early childhood 

education programs, including early 

intervention programs authorized under 

Part C of the Individuals with 

Disabilities Education Act (IDEA). 

Similarly, agencies other than SEAs may 

administer career and technical 

education or adult education programs. 

Because all of these programs could 

benefit from the type of rigorous datadriven evaluation that SLDS will 

facilitate, we are proposing to define the 

term education program to include 

these programs that are not 

administered by education agencies. 

This proposed change would provide 

greater access to information on 

students before entering or exiting the 

P–16 programs. The information could 

be used to evaluate these education 

programs and provide increased 

opportunities to build upon successful 

ones and improve less successful ones. 

In order to accomplish these objectives, 

and to give States the flexibility needed 

to develop and expand the SLDS 

contemplated under the ARRA, the 

Department proposes to interpret the 

term education program, as used in 

FERPA and its implementing 

regulations, to mean any program that is 

principally engaged in the provision of 

education, including, but not limited to, 

early childhood education, elementary 

and secondary education, postsecondary 

education, special education, job 

training, career and technical education, 

and adult education, even when 

agencies other than SEAs administer 

such a program.1 Thus, as an example, 

under the proposed definitions of the 

terms, authorized representative and 

education program, FERPA would 

permit a State educational authority to 

designate a State health and human 

services agency as its authorized 

representative in order to conduct an 

audit or an evaluation of any Federal or 

State supported education program, 

such as the Head Start program. 

Research Studies (§ 99.31(a)(6)) 

Statute: Section (b)(1)(F) of FERPA 

permits educational agencies and 

institutions non-consensually to 

disclose PII to organizations conducting 

studies for, or on behalf of, educational 

agencies and institutions to improve 

instruction, to administer student aid 

programs, or to develop, validate, or 

administer predictive tests. 

Current Regulations: Current 

§ 99.31(a)(6)(ii)(C) requires that an 

educational agency or institution enter 

into a written agreement with the 

organization conducting the study that 

specifies the purpose, scope, and 

duration of the study and the 

information to be disclosed and meets 

certain other requirements. Current 

regulations do not indicate whether 

State and local educational authorities 

and agencies headed by officials listed 

in § 99.31(a)(3) that may redisclose PII 

on behalf of educational agencies and 

institutions under § 99.33(b) may also 

enter into this type of written 

agreement. 

Proposed Regulations: The Secretary 

proposes to amend § 99.31 by 

redesignating paragraphs (a)(6)(ii) 

through (a)(6)(v) as paragraphs (a)(6)(iii) 

through (a)(6)(vi) and adding a new 

paragraph (a)(6)(ii). This new paragraph 

would clarify that nothing in FERPA or 

its implementing regulations prevents a 

State or local educational authority or 

agency headed by an official listed in 

§ 99.31(a)(3) from entering into 

agreements with organizations 

conducting studies under § 99.31(a)(6)(i) 

and redisclosing PII on behalf of the 

educational agencies and institutions 

that provided the information in 

accordance with the requirements of 

§ 99.33(b). We also propose to amend 

§ 99.31(a)(6) to require written 

agreements between a State or local 

educational authority or agency headed 

by an official listed in § 99.31(a)(3) and 

any organization conducting studies 

with redisclosed PII under this 

exception (see proposed 

§ 99.31(a)(6)(iii)(C)). Under this 

amended regulatory provision, these 

agreements would need to contain the 

specific provisions currently required in 

agreements between educational 

agencies or institutions and such 

organizations under current 

§ 99.31(a)(6)(ii)(C). Thus, the only 

differences between proposed 

§ 99.31(a)(6)(iii)(C) and current 

§ 99.31(a)(6)(ii)(C) would be to make the 

written agreement requirements apply 

to State or local educational authorities 

or agencies headed by an official listed 

in § 99.31(a)(3) as well as educational 

agencies and institutions. Finally, newly 

redesignated § 99.31(a)(6)(iv) and 

(a)(6)(v) would be revised to ensure that 

these provisions apply to State and local 

educational authorities or agencies 

headed by an official listed in 

§ 99.31(a)(3)—not only educational 

agencies and institutions. 

Reasons: In the preamble to the 

FERPA regulations published in the 

Federal Register on December 9, 2008 

(73 FR 74806, 74826), the Department 

explained that an SEA or other State 

educational authority that has legal 

authority to enter into agreements for 

LEAs or postsecondary institutions 

under its jurisdiction may enter into an 

agreement with an organization 

conducting a study for the LEA or 

institution under the studies exception 

in § 99.31(a)(6). The preamble explained 

further that if the SEA or other State 

educational authority does not have the 

legal authority to act for or on behalf of 

an LEA or institution, then the SEA or 

other State educational authority would 

not be permitted to enter into an 

agreement with an organization under 

this exception. The changes reflected in 

proposed § 99.31(a)(6)(ii) are necessary 

to clarify that while FERPA does not 

confer legal authority on State and 

Federal agencies to enter into 

agreements and act on behalf of or in 

place of LEAs and postsecondary 

institutions, nothing in FERPA prevents 

them from entering into these 

agreements and redisclosing PII on 

behalf of LEAs and postsecondary 

institutions to organizations conducting 

studies under § 99.31(a)(6) in 

accordance with the redisclosure 

requirements in § 99.33(b). 

As explained in the preamble to the 

December 2008 regulations (see 73 FR 

74806, 74821), the Department 

recognizes that the State and local 

educational authorities and Federal 

officials that receive PII without consent 

under § 99.31(a)(3) are generally 

responsible for supervising and 

monitoring LEAs and postsecondary 

institutions. SEAs and State higher 

educational agencies, in particular, 

typically have the role and 

responsibility to perform and support 

research and evaluation of publicly 

funded education programs for the 

benefit of multiple educational agencies 

and institutions in their States. We 

understand further that these 

relationships generally provide 

sufficient authority for a State 

educational authority to enter into an 

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agreement with an organization 

conducting a study and to redisclose PII 

received from educational agencies and 

institutions that provided the 

information in accordance with 

§ 99.33(b). The proposed regulations, 

therefore, would clarify that studies 

supported by these State and Federal 

authorities of publicly funded education 

programs generally may be conducted, 

while simultaneously ensuring that any 

PII disclosed is appropriately protected 

by the organizations conducting the 

studies. 

In the event that an educational 

agency or institution objects to the 

redisclosure of PII it has provided, the 

State or local educational authority or 

agency headed by an official listed in 

§ 99.31(a)(3) may rely instead on any 

independent authority it has to further 

disclose the information on behalf of the 

agency or institution. The Department 

recognizes that this authority may be 

implied and need not be explicitly 

granted. 

Authority To Audit or Evaluate 

(§ 99.35) 

Statute: Sections (b)(1)(C), (b)(3) and 

(b)(5) of FERPA (20 U.S.C. 

1232g(b)(1)(C), (b)(3) and (b)(5)) permit 

educational agencies and institutions 

non-consensually to disclose PII to 

authorized representatives of State and 

local educational authorities, the 

Secretary, the Attorney General of the 

United States, and the Comptroller 

General of the United States, as may be 

necessary in connection with the audit, 

evaluation, or the enforcement of 

Federal legal requirements related to 

Federal or State supported education 

programs. 

Current Regulations: Current 

§ 99.35(a)(2) provides that in order for a 

State or local educational authority or 

other agency headed by an official listed 

in § 99.31(a)(3) to conduct an audit, 

evaluation, or compliance or 

enforcement activity, its authority to do 

so must be established under other 

Federal, State, or local authority because 

that authority is not conferred by 

FERPA. 

Proposed Regulations: The Secretary 

proposes to amend § 99.35(a)(2) by 

removing the provision that a State or 

local educational authority or other 

agency headed by an official listed in 

§ 99.31(a)(3) must establish legal 

authority under other Federal, State or 

local law to conduct an audit, 

evaluation, or compliance or 

enforcement activity. 

Reasons: Current §§ 99.33(b)(1) and 

99.35(b)(1) permit State and local 

educational authorities and agencies 

headed by officials listed in § 99.31(a)(3) 

to further disclose PII from education 

records on behalf of educational 

agencies or institutions to other 

authorized recipients under § 99.31, 

including separate State educational 

authorities at different levels of 

education, provided that the 

redisclosure meets the requirements of 

§ 99.33(b)(1) and the recordkeeping 

requirements in § 99.32(b). However, we 

believe that our prior guidance and 

statements made in the preambles to the 

notice of proposed rulemaking 

published on March 24, 2008 (73 FR 

15574), and the final regulations 

published on December 9, 2008 (73 FR 

74806), may have created some 

confusion about whether a State or local 

educational authority or agency headed 

by an official listed in § 99.31(a)(3) that 

receives PII under the audit and 

evaluation exception must be 

authorized to conduct an audit or 

evaluation of a Federal or State 

supported education program, or 

enforcement or compliance activity in 

connection with Federal legal 

requirements related to the education 

program of the disclosing educational 

agency or institution or whether the PII 

may be disclosed in order for the 

recipient to conduct an audit, 

evaluation, or enforcement or 

compliance activity with respect to the 

recipient’s own Federal or State 

supported education programs. 

By removing the language concerning 

legal authority from current 

§ 99.35(a)(2), the Department would 

clarify two things to eliminate this 

confusion. First, the Department would 

clarify that the authority for a State or 

local educational authority or Federal 

agency headed by an official listed in 

§ 99.31(a)(3) to conduct an audit, 

evaluation, enforcement or compliance 

activity may be express or implied. And, 

second, the Department would clarify 

that FERPA permits non-consensual 

disclosure of PII to a State or local 

educational authority or agency headed 

by an official listed in § 99.31(a)(3) to 

conduct an audit, evaluation, or 

compliance or enforcement activity with 

respect to the Federal or State supported 

education programs of the recipient’s 

own Federal or State supported 

education programs as well as those of 

the disclosing educational agency or the 

institution. 

The Department intends these 

clarifications to promote Federal 

initiatives to support the robust use of 

data by State and local educational 

authorities to evaluate the effectiveness 

of Federal or State supported education 

programs. The provision of 

postsecondary student data to P–12 data 

systems is vital to evaluating whether 

P–12 schools are effectively preparing 

students for college. This proposed 

clarification would, for example, 

establish that FERPA does not prohibit 

a private postsecondary institution from 

non-consensually disclosing to an LEA 

PII on the LEA’s former students who 

are now in attendance at the private 

postsecondary institution, as may be 

necessary for the LEA to evaluate the 

Federal or State supported education 

programs that the LEA administers. This 

proposed clarification similarly would 

establish that FERPA does not prohibit 

a postsecondary data system from nonconsensually redisclosing PII to an SEA 

in connection with the SEA’s evaluation 

of whether the State’s LEAs effectively 

prepared their graduates to enroll, 

persist, and succeed in postsecondary 

education. 

Directory Information (§ 99.37) 

Section 99.37(c) (Student ID Cards and 

ID Badges) 

Statute: The statute does not address 

whether parents and eligible students 

may use their right to opt out of 

directory information disclosures to 

prevent school officials from requiring 

students to disclose ID cards or to wear 

ID badges. 

Current Regulations: Current 

regulations do not address whether 

parents and eligible students may use 

their right to opt out of directory 

information disclosures to prevent 

school officials from requiring students 

to disclose ID cards or to wear ID 

badges. 

Proposed Regulations: The proposed 

regulations would provide in § 99.37(c) 

that parents or eligible students may not 

use their right to opt out of directory 

information disclosures to prevent an 

educational agency or institution from 

requiring students to wear or otherwise 

disclose student ID cards or badges that 

display information that may be 

designated as directory information 

under § 99.3 and that has been properly 

designated by the educational agency or 

institution as directory information 

under § 99.37(a)(1). 

Reasons: An increased awareness of 

school safety and security has prompted 

some educational agencies and 

institutions, especially school districts, 

to require students to wear and openly 

display a student ID badge that contains 

identifying information (typically, 

name, photo, and student ID number) 

when the student is on school property 

or participates in extracurricular 

activities. We have received inquiries 

about this issue, as well as complaints 

that the mandatory public display of 

identifying information on a student ID 

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badge violates the FERPA rights of 

parents and eligible students who have 

opted out of directory information 

disclosures. The proposed regulations 

are needed to clarify that the right to opt 

out of directory information disclosures 

is not a mechanism for students, when 

in school or at school functions, to 

refuse to wear student ID badges or to 

display student ID cards that display 

information that may be designated as 

directory information under § 99.3 and 

that has been properly designated by the 

educational agency or institution as 

directory information under 

§ 99.37(a)(1). Because we recognize that 

the types of ID cards and badges that 

postsecondary institutions require may 

differ significantly from those required 

by elementary and secondary schools, 

we are requesting comments from 

postsecondary officials on whether this 

proposed change raises any 

particularized concerns for their 

institutions. 

The directory information exception 

is intended to facilitate communication 

among school officials, parents, 

students, alumni, and others, and 

permits schools to publicize and 

promote institutional activities to the 

general public. Many schools do so by 

publishing paper or electronic 

directories that contain student names, 

addresses, telephone listings, e-mail 

addresses, and other information the 

institution has designated as directory 

information. Some schools do not 

publish a directory but do release 

directory information on a more 

selective basis. FERPA allows a parent 

or eligible student to opt out of these 

disclosures (under the conditions 

specified in § 99.37(a)), whether the 

information is made available to the 

general public, limited to members of 

the school community, or released only 

to specified individuals. 

The Secretary believes, however, that 

the need for schools and college 

campuses to implement measures to 

ensure the safety and security of 

students is of the utmost importance 

and that FERPA should not be used as 

an impediment to achieving student 

safety. Thus, the right to opt out of the 

disclosure of directory information does 

not include the right to refuse to wear 

or otherwise disclose a student ID card 

or badge that displays directory 

information and, therefore, may not be 

used to impede a school’s ability to 

monitor and control who is in school 

buildings or on school grounds or 

whether a student is where he or she 

should be. This proposed change would 

mean that, even when a parent or 

eligible student opts out of the 

disclosure of directory information, an 

educational agency or institution may 

nevertheless require the student to wear 

and otherwise disclose a student ID card 

or badge that displays information that 

may be designated as directory 

information under § 99.3 and that has 

been properly designated by the 

educational agency or institution as 

directory information under 

§ 99.37(a)(1). 

Section 99.37(d) (Limited Directory 

Information Policy) 

Statute: Under sections (a)(5), (b)(1), 

and (b)(2) of FERPA (20 U.S.C. 

1232g(a)(5), (b)(1), and (b)(2)), an 

educational agency or institution may 

disclose directory information without 

meeting FERPA’s written consent 

requirements provided that it first 

notifies the parents or eligible students 

of the types of information that may be 

disclosed and allows them to opt out of 

the disclosure. The statute lists a 

number of items in the definition of 

directory information, including a 

student’s name, address, and telephone 

listing. The statute does not otherwise 

address whether an educational agency 

or institution may have a limited 

directory information policy in which it 

specifies the exact parties who may 

receive directory information, the 

specific purposes for which the 

directory information may be disclosed, 

or both. 

Current Regulations: Section 99.37(a) 

requires an educational agency or 

institution to provide public notice to 

parents of students in attendance and 

eligible students in attendance of the 

types of directory information that may 

be disclosed and the parent’s or eligible 

student’s right to opt out. 

Proposed Regulations: Proposed 

§ 99.37(d) would clarify that an 

educational agency or institution may 

specify in the public notice it provides 

to parents and eligible students in 

attendance provided under § 99.37(a) 

that disclosure of directory information 

will be limited to specific parties, for 

specific purposes, or both. We also 

propose to clarify that an educational 

agency or institution that adopts a 

limited directory information policy 

must limit its directory information 

disclosures only to those parties and 

purposes that were specified in the 

public notice provided under § 99.37(a). 

Reasons: Some school officials have 

advised us that their educational 

agencies and institutions do not have a 

directory information policy under 

FERPA, due to concerns about the 

potential misuse by members of the 

public of personally identifiable 

information about students, including 

potential identity theft. Clarifying that 

the regulations permit educational 

agencies and institutions to have a 

limited directory information policy 

would give educational agencies and 

institutions greater discretion in 

protecting student privacy by permitting 

them to limit the release of directory 

information for specific purposes, to 

specific parties, or both. This proposed 

change also would provide a regulatory 

authority for FPCO to investigate and 

enforce a violation of a limited directory 

information policy by an educational 

agency or institution. 

However, in order not to impose 

additional administrative burdens on 

educational agencies and institutions, 

the Department is not proposing 

changes to the recordkeeping 

requirement in § 99.32(d)(4), which 

currently excepts educational agencies 

and institutions from having to record 

the disclosure of directory information. 

For similar reasons, the Department is 

not proposing to amend the redisclosure 

provisions in § 99.33(c), which except 

the redisclosure of directory information 

from the general prohibition on 

redisclosure of personally identifiable 

information. While the Department is 

not proposing to regulate on the 

redisclosure of directory information by 

third parties that receive directory 

information from educational agencies 

or institutions under a limited directory 

information policy, we nevertheless 

strongly recommend that educational 

agencies and institutions that choose to 

adopt a limited directory information 

policy assess the need to protect the 

directory information from further 

disclosure by the third parties to which 

they disclose directory information; 

when a need to protect the information 

from further disclosure is identified, 

educational agencies and institutions 

should enter into non-disclosure 

agreements with the third parties. 

Enforcement Procedures With Respect 

to Any Recipient of Department Funds 

That Students Do Not Attend (§ 99.60) 

Statute: Sections (f) and (g) of FERPA 

(20 U.S.C. 1232g(f) and (g)) authorize 

the Secretary to take appropriate actions 

to enforce and address violations of 

FERPA in accordance with part D of the 

General Education Provisions Act (20 

U.S.C. 1234 through 1234i) and to 

establish or designate an office and 

review board within the Department for 

the purpose of investigating, processing, 

reviewing, and adjudicating alleged 

violations of FERPA. 

Current Regulations: Current 

§ 99.60(b) designates the FPCO as the 

office within the Department 

responsible for investigating, 

processing, and reviewing alleged 

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violations of FERPA. Current subpart E 

of the FERPA regulations (§§ 99.60 

through 99.67), however, only addresses 

alleged violations of FERPA committed 

by an educational agency or institution. 

Proposed Regulations: Proposed 

§ 99.60(a)(2) would provide that, solely 

for purposes of subpart E of the FERPA 

regulations, which addresses 

enforcement procedures, an 

‘‘educational agency or institution’’ 

includes any public or private agency or 

institution to which FERPA applies 

under § 99.1(a)(2), as well as any State 

educational authority (e.g., SEAs or 

postsecondary agency) or local 

educational authority or any other 

recipient to which funds have been 

made available under any program 

administered by the Secretary (e.g., a 

nonprofit organization, student loan 

guaranty agency, or a student loan 

lender), including funds provided by 

grant, cooperative agreement, contract, 

subgrant, or subcontract. 

Reasons: With the advent of SLDS, it 

is necessary for the Department to 

update our enforcement regulations to 

clearly set forth the Department’s 

authority to investigate and enforce 

alleged violations of FERPA by State 

and local educational authorities or any 

other recipients of Department funds 

under a program administered by the 

Secretary. Current §§ 99.60 through 

99.67 only apply the enforcement 

provisions in FERPA to an ‘‘educational 

agency or institution.’’ Although the 

statute and the regulations broadly 

define the term ‘‘educational agency or 

institution,’’ the Department generally 

has not interpreted the term to include 

entities that students do not attend. The 

Department’s interpretation is based 

upon the fact that FERPA defines 

‘‘education records’’ as information 

directly related to a ‘‘student,’’ and that 

‘‘student’’ is, in turn, defined as 

excluding a person who has not been in 

attendance at the educational agency or 

institution. 20 U.S.C. 1232g(a)(4) and 

(a)(6). Because students do not attend 

non-school types of entities the 

Department has generally not viewed 

these recipients of Department funds as 

being ‘‘educational agencies or 

institutions’’ under FERPA. 

Consequently, the current regulations 

do not clearly authorize FPCO to 

investigate, review, and process an 

alleged violation committed by 

recipients of Department funds under a 

program administered by the Secretary 

in which students do not attend. In 

addition, the regulations do not clearly 

authorize the Secretary to bring an 

enforcement action against these 

recipients. Further, it would not be fair 

to hold an LEA or institution of higher 

education (IHE) that originally disclosed 

the PII to a State or local educational 

authority responsible for violation of 

FERPA by the State or local educational 

authority because the LEA or IHE 

generally would not have an effective 

means to prevent such an improper 

redisclosure by a State or local 

educational authority. 

Therefore, the Department proposes to 

add a new § 99.60(a)(2) that would 

clearly authorize the Department to hold 

State educational authorities(e.g., SEAs 

and State postsecondary agencies), local 

educational authorities, as well as other 

recipients of Department funds under 

any program administered by the 

Secretary (e.g., nonprofit organizations, 

student loan guaranty agencies, and 

student loan lenders), accountable for 

compliance with FERPA. The 

Department believes that this authority 

is especially important given the 

disclosures of PII needed to implement 

SLDS. 

Because the Department has generally 

not viewed these entities as being 

‘‘educational agencies or institutions’’ 

under FERPA and consequently has not 

viewed most FERPA provisions as 

applying to them (e.g., the requirement 

in § 99.7 to annually notify parents and 

eligible students of their rights under 

FERPA, and the requirement in § 99.37 

to give public notice to parents and 

eligible students about directory 

information, if it has a policy of 

disclosing directory information), we 

anticipate that most FERPA compliance 

issues involving these entities will 

concern whether they have complied 

with FERPA’s redisclosure provision in 

§ 99.33. 

We expect that we will face few issues 

concerning these entities’ compliance 

with the few additional FERPA 

provisions that may be applicable to 

them. For example, the FERPA 

requirements, in addition to those in 

§ 99.33, that may be applicable to 

entities that are not ‘‘educational 

agencies or institutions’’ under FERPA 

include, but are not limited to, the right 

to inspect and review education records 

maintained by an SEA or any of its 

components under § 99.10(a)(2), the 

requirement that organizations 

conducting studies under § 99.31(a)(6) 

must not permit the personal 

identification of parents and students by 

anyone other than representatives of 

that organization with legitimate 

interests in the information and must 

destroy or return personally identifiable 

information from education records 

when the information is no longer 

needed for the purposes for which the 

study was conducted, and the 

requirement in § 99.35(b)(2) that 

personally identifiable information from 

education records that is collected by a 

State or local educational authority or 

agency headed by an official listed in 

§ 99.31(a)(3) in connection with an audit 

or evaluation of Federal or State 

supported education programs, or to 

enforce Federal legal requirements 

related to Federal or State supported 

education programs, must be destroyed 

when no longer needed for these 

purposes. 

Executive Order 12866 

Under Executive Order 12866, the 

Secretary must determine whether this 

regulatory action is ‘‘significant’’ and 

therefore subject to the requirements of 

the Executive Order and subject to 

review by the Office of Management and 

Budget (OMB). Section 3(f) of Executive 

Order 12866 defines a ‘‘significant 

regulatory action’’ as an action likely to 

result in a rule that may: (1) Have an 

annual effect on the economy of $100 

million or more, or adversely affect a 

sector of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local or 

Tribal governments or communities in a 

material way (also referred to as an 

‘‘economically significant’’ rule); (2) 

create serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; (3) 

materially alter the budgetary impacts of 

entitlement grants, user fees, or loan 

programs or the rights and obligations of 

recipients thereof; or (4) raise novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. The Secretary has determined 

that this regulatory action is significant 

under section 3(f) of the Executive 

order. 

In accordance with Executive Order 

12866, the Secretary has assessed 

potential costs and benefits of this 

regulatory action and determined that 

the benefits justify the costs. 

Need for Federal Regulatory Action 

These proposed regulations are 

needed to ensure that the Department’s 

implementation of FERPA continues to 

protect the privacy of student education 

records, while allowing for the effective 

use of data in education records, 

particularly data in statewide 

longitudinal data systems. 

Summary of Costs and Benefits 

Following is an analysis of the costs 

and benefits of the proposed changes to 

the FERPA regulations, which would 

make changes to facilitate the 

disclosure, without written consent, of 

education records, particularly data in 

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19734 Federal Register / Vol. 76, No. 68 / Friday, April 8, 2011 / Proposed Rules 

statewide longitudinal data systems, for 

the purposes of evaluating education 

programs and ensuring compliance with 

Federal and State requirements. In 

conducting this analysis, the 

Department examined the extent to 

which the proposed changes would add 

to or reduce the costs of educational 

agencies, other agencies, and 

institutions in complying with the 

FERPA regulations prior to these 

changes, and the extent to which the 

proposed changes are likely to provide 

educational benefit. Allowing datasharing across agencies, because it 

increases the number of individuals 

who have access to personally 

identifiable information, may increase 

the risk of unauthorized disclosure. 

However, we do not believe that the 

staff in the additional agencies who will 

have access to the data are any more 

likely to violate FERPA than existing 

users, and the strengthened 

accountability and enforcement 

mechanisms will help to ensure better 

compliance overall. While there will be 

administrative costs associated with 

implementing data-sharing protocols, 

we believe that the relatively minimal 

administrative costs of establishing 

data-sharing protocols would be off-set 

by potential analytic benefits. Based on 

this analysis, the Secretary has 

concluded that the proposed 

modifications would result in savings to 

entities and have the potential to benefit 

the Nation by improving capacity to 

conduct analyses that will provide 

information needed to improve 

education. 

Authorized Representative 

The proposed regulations would 

amend § 99.3 by adding a definition of 

the term authorized representative that 

would include any individual or entity 

designated by an educational authority 

or certain other officials to carry out 

audits, evaluations, or enforcement or 

compliance activities relating to 

education programs. Under the current 

regulations, educational authorities may 

provide to authorized representatives 

PII for the purposes of conducting 

audits, evaluations, or enforcement and 

compliance activities relating to Federal 

and State supported education 

programs. The term ‘‘authorized 

representative’’ is not defined, but the 

Department’s position has been that 

educational authorities may only 

disclose education records to entities 

over which they have direct control, 

such as an employee or a contractor of 

the authority. Therefore, SEAs have not 

been able to disclose PII to other State 

agencies, even for the purpose of 

evaluating education programs under 

the purview of the SEAs. For example, 

an SEA or LEA could not disclose PII to 

a State employment agency for the 

purpose of obtaining data on postschool outcomes such as employment 

for its former students. Thus, if an SEA 

or LEA wanted to match education 

records with State employment records 

for purposes of evaluating its secondary 

education programs, it would have to 

import the entire workforce database 

and do the match itself (or contract with 

a third party to do the same analysis). 

Similarly, if a State workforce agency 

wanted to use PII maintained by the 

SEA in its longitudinal educational data 

system, in combination with data it had 

on employment outcomes, to evaluate 

secondary vocational education 

programs, it would not be able to obtain 

the SEA’s educational data in order to 

conduct the analyses. It would have to 

provide the workforce data to the SEA 

to conduct the analyses or to a third 

party (e.g., an entity under the direct 

control of the SEA) to construct the 

needed longitudinal administrative data 

systems. While feasible, these strategies 

force agencies to outsource their 

analyses to other agencies or entities, 

adding administrative cost, burden, and 

complexity. Moreover, preventing 

agencies from using data directly for 

conducting their own analytical work 

increases the likelihood that the work 

will not meet their expectations or get 

done at all. Finally, the current 

interpretation of the regulations exposes 

greater amounts of PII to risk of 

disclosure as a result of greater 

quantities of PII moving across 

organizations (e.g., the entire workforce 

database) than would be the case with 

a more targeted data request (e.g., 

graduates from a given year who appear 

in the workforce database). The 

proposed regulatory changes would 

permit educational agencies (and other 

entities listed in § 99.31(a)(3)) to nonconsensually disclose PII to other State 

agencies or to house data in a common 

State data system, such as a data 

warehouse administered by a central 

State authority for the purposes of 

conducting audits or evaluations of 

Federal or State supported education 

programs, or for enforcement of and 

compliance with Federal legal 

requirements relating to Federal and 

State supported education programs 

(consistent with FERPA and other 

Federal and State confidentiality and 

privacy provisions). 

The Department also proposes to 

amend § 99.35 to require that written 

agreements require PII to be used only 

to carry out an audit or an evaluation of 

Federal or State supported education 

program or for an enforcement or 

compliance activity in connection with 

Federal legal requirements that relate to 

those programs and protect PII from 

unauthorized disclosure. The cost of 

entering into such agreements should be 

minimal in relation to the benefits of 

being able to share data. 

Education Program 

The proposed regulations would 

amend § 99.3 by providing a definition 

of the term education program to clarify 

that an education program can include 

a program administered by a noneducational agency, e.g., an early 

childhood program administered by a 

human services agency or a career or 

technical training program administered 

by a workforce or labor agency. This 

proposed change, in combination with 

the proposed definition of the term 

authorized representative, would allow 

non-educational agencies to have easier 

access to PII in student education 

records that they could use to evaluate 

the education programs they administer. 

For example, this proposed change 

would permit nonconsensual 

disclosures of PII in elementary and 

secondary school education records to a 

non-educational agency that is 

administering an early childhood 

education program in order to evaluate 

the impact of its early childhood 

education program on its students’ longterm educational outcomes. The 

potential benefits of this proposed 

change are substantial, including the 

benefits of non-educational agencies 

that are administering ‘‘education 

programs’’ being able to conduct their 

own analyses without incurring the 

prohibitive costs of obtaining consent 

for access to individual student records. 

Research Studies 

Section (b)(1)(F) of FERPA permits 

educational agencies and institutions 

non-consensually to disclose PII to 

organizations conducting research 

studies for, or on behalf of, educational 

agencies or institutions that provided 

the PII, for statutorily-specified 

purposes. The proposed amendment to 

§ 99.31(a)(6) would permit any of the 

authorities listed in § 99.31(a)(3), 

including SEAs, to enter into written 

agreements that provide for the 

disclosure of PII to research 

organizations for studies that would 

benefit the educational agencies or 

institutions that provided the PII to the 

SEA or other educational authorities, 

whether or not the educational authority 

has explicit authority to act on behalf of 

those agencies or institutions. The 

preamble to the final FERPA regulations 

published in the Federal Register on 

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Federal Register / Vol. 76, No. 68 / Friday, April 8, 2011 / Proposed Rules 19735 

December 9, 2008 (73 FR 74806, 74826) 

took the position that an SEA, for 

example, cannot re-disclose PII obtained 

from LEAs to a research organization 

unless the SEA had separate legal 

authority to act on an LEA’s (or other 

educational institution’s) behalf. 

Because, in practice, this authority may 

not be explicit in all States, we propose 

to amend § 99.31 to specifically allow 

State educational authorities to enter 

into agreements with research 

organizations for studies that are for 

enumerated purposes under FERPA, 

such as studies to improve instruction 

(see proposed § 99.31(a)(6)(ii)). The 

Department believes that this change 

will have benefits for education because 

it would reduce the administrative costs 

of, and reduce the barriers to, using 

student data, including data in SLDS, in 

order to conduct studies to improve 

education programs. 

Authority to Evaluate 

Under current § 99.35(a)(2), the 

authority for an SEA or LEA to conduct 

an audit, evaluation, or compliance or 

enforcement activity is not conferred by 

FERPA, but ‘‘must be established under 

other Federal, State, or local authority.’’ 

Lack of such explicit State or local 

authority has hindered the use of data 

in some States. The proposed 

amendments would remove the 

discussion of legal authority in order to 

clarify that FERPA and its implementing 

regulations do not require that a State or 

local educational authority have express 

legal authority to conduct audits, 

evaluations, or compliance or 

enforcement activities, but instead may 

obtain PII when they have implied 

authority to conduct evaluation, audit, 

and compliance activities of their own 

programs. 

This proposed change also would 

allow an SEA to receive PII from 

postsecondary institutions as needed to 

evaluate its own programs and 

determine whether its schools are 

adequately preparing students for higher 

education. The preamble to the final 

FERPA regulations published in the 

Federal Register on December 9, 2008 

(73 FR 74806, 74822) suggested that PII 

in the records of postsecondary 

institutions could only be disclosed to 

an SEA if the SEA has legal authority to 

evaluate postsecondary institutions. 

This interpretation restricts SEAs from 

conducting analyses to determine how 

effectively they are preparing students 

for higher education and from 

identifying effective programs, and thus 

has hindered efforts to improve 

education. The primary benefit of this 

proposed change is that it would allow 

SEAs to conduct analyses (consistent 

with FERPA and other Federal and State 

confidentiality and privacy provisions) 

that they previously were unable to 

undertake, without incurring the 

prohibitive costs of obtaining consent 

from students or parents in order to 

obtain, without prior, written consent, 

PII for the purpose of program 

evaluations. 

Educational Agency or Institution 

Sections (f) and (g) of FERPA 

authorize the Secretary to take 

appropriate actions to enforce and deal 

with FERPA violations, but subpart E of 

the FERPA regulations only addresses 

alleged violations of FERPA by an 

‘‘educational agency or institution.’’ 

Because the Department has not 

interpreted that term to include agencies 

or institutions that students do not 

attend, the current FERPA regulations 

do not specifically permit the Secretary 

to bring an enforcement action against 

an SEA or other State or local 

educational authority that does not meet 

the definition of an ‘‘educational agency 

or institution’’ under FERPA. Thus, for 

example, if an SEA improperly 

redisclosed PII obtained from its LEAs, 

the Department would pursue 

enforcement actions against each of the 

LEAs, and not the SEA. Proposed 

§ 99.60(a)(2), which would define an 

‘‘educational agency or institution’’ to 

include any State or local educational 

authority or other recipient that has 

received Department of Education 

funds, would allow the Department to 

pursue enforcement against a State 

agency or other recipient of Department 

funds that had allegedly disclosed the 

PII, rather than against the agency or 

institution that had provided the PII to 

the State agency or other recipient of 

Department funds. 

This change would result in some 

administrative savings and improve the 

efficiency of the enforcement process. 

Under the current regulations, if, for 

example, an SEA with 500 LEAs 

improperly redisclosed PII from its 

SLDS to an unauthorized party, the 

Department would need to investigate 

each of the 500 LEAs, which are 

unlikely to have knowledge relating to 

the disclosure. Under the proposed 

change, the LEAs would be relieved of 

any administrative costs associated with 

responding to the Department’s request 

for information about the disclosure and 

the Department could immediately 

direct the focus of its investigation on 

the SEA, the agency most likely to have 

information on and bear responsibility 

for the disclosure of PII, without having 

to waste time and resources contacting 

the LEAs. 

We welcome public input and data to 

further inform and allow us to quantify 

the costs and benefits of these proposed 

changes. We particularly welcome 

information on the costs encountered by 

State agencies using education data 

maintained by SEAs and the 

impediments to using postsecondary 

education data. 

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: 

• 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 ‘‘§ ’’ 

and a numbered heading; for example, 

§ 99.35.) 

• 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? 

To send any comments that concern 

how the Department could make these 

proposed regulations easier to 

understand, see the instructions in the 

ADDRESSES section of this preamble. 

Regulatory Flexibility Act Certification 

The Secretary certifies that this 

regulatory action will not have a 

significant economic impact on a 

substantial number of small entities. 

The small entities that this final 

regulatory action will affect are small 

LEAs. The Secretary believes that the 

costs imposed on applicants by these 

regulations would be limited to 

paperwork burden related to 

requirements concerning data-sharing 

agreements and that the benefits from 

ensuring that data from education 

records are collected, stored, and shared 

appropriately outweigh any costs 

incurred by applicants. 

The U.S. Small Business 

Administration Size Standards define as 

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19736 Federal Register / Vol. 76, No. 68 / Friday, April 8, 2011 / Proposed Rules 

‘‘small entities’’ for-profit or nonprofit 

institutions with total annual revenue 

below $7,000,000 or, if they are 

institutions controlled by small 

governmental jurisdictions (that are 

comprised of cities, counties, towns, 

townships, villages, school districts, or 

special districts), with a population of 

less than 50,000. 

According to estimates from the U.S. 

Census Bureau’s Small Area Income and 

Poverty Estimates programs that were 

based on school district boundaries for 

the 2007–8 school year, there are 12,484 

LEAs in the country that include fewer 

than 50,000 individuals within their 

boundaries and for which there is 

estimated to be at least one school-age 

child. In its 1997 publication, 

Characteristics of Small and Rural 

School Districts, the National Center for 

Education Statistics defined a small 

school district as ‘‘one having fewer 

students in membership than the sum of 

(a) 25 students per grade in the 

elementary grades it offers (usually K– 

8) and (b) 100 students per grade in the 

secondary grades it offers (usually 9– 

12).’’ Using this definition, a district 

would be considered small if it had 

fewer than 625 students in membership. 

The Secretary believes that the 4,800 

very small LEAs that meet this second 

definition are highly unlikely to enter 

into data-sharing agreements directly 

with outside entities. 

The Department does not have 

reliable data with which to estimate 

how many of the remaining 7,684 small 

LEAs would enter into data-sharing 

agreements. For small LEAs that enter 

into data-sharing agreements, we 

estimate that they would spend 

approximately 4 hours executing each 

agreement, using a standard datasharing protocol. Thus, we assume the 

impact on the entities would be 

minimal. However, we invite comment 

from entities familiar with data-sharing 

in small districts on the number of 

entities likely to enter into agreements 

each year, the number of such 

agreements, and number of hours 

required to execute each agreement. 

Federalism 

Executive Order 13132 requires us to 

ensure meaningful and timely input by 

State and local elected officials in the 

development of regulatory policies that 

have federalism implications. 

‘‘Federalism implications’’ means 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. The proposed 

regulations in §§ 99.3, 99.31(a)(6), and 

99.35 may have federalism implications, 

as defined in Executive Order 13132, in 

that they will have some effect on the 

States and the operation of educational 

agencies and institutions subject to 

FERPA. We encourage State and local 

elected officials to review and provide 

comments on these proposed 

regulations. To facilitate review and 

comment by appropriate State and local 

officials, the Department will, aside 

from publication in the Federal 

Register, post the NPRM to the FPCO 

Web site and to the Privacy Technical 

Assistance Center (PTAC) Web site and 

make a specific e-mail posting via a 

special listserv that is sent to each State 

department of education superintendent 

and higher education commission 

director. 

Paperwork Reduction Act of 1995 

Proposed §§ 99.31(a)(6)(ii) and 

99.35(a)(3) contain information 

collection requirements. Under 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. (OMB 

Control Number 1875–0246.) 

The proposed regulations modify the 

information collection requirements in 

§ 99.31(a)(6)(ii) and § 99.32(b)(2); 

however, the Department does not 

believe the proposed changes add any 

new burden to State or local educational 

authorities. Burdens associated with 

§§ 99.31(a)(6)(ii) and 99.32(b)(2) were 

approved under OMB Control Number 

1875–0246 when the December 9, 2008 

regulations were published. The 

proposed change that would clarify that 

nothing in FERPA prevents a State or 

local educational authority or Federal 

agencies and officials listed in 

§ 99.31(a)(3) from entering into written 

agreements with organizations 

conducting studies, for or on behalf of 

educational agencies and institutions 

does not constitute a change or an 

increase in burden. This is because the 

provision would permit an organization 

conducting a study to enter into one 

written agreement with a State or local 

educational authority or Federal agency 

or official listed in § 99.31(a)(3), rather 

than making the organization enter into 

many more written agreements with 

each school district or school that 

provided the data to the State or local 

educational authority or Federal agency 

or official listed in § 99.31(a)(3). The 

addition of the definition of the term 

authorized representative, which would 

permit a State or local educational 

authority, the Secretary, the Comptroller 

General of the United States, or the 

Attorney General of the United States to 

designate any entity or individual to 

conduct—with respect to Federal or 

State supported education programs— 

any audit, evaluation, or compliance or 

enforcement activity in connection with 

Federal legal requirements that related 

to those programs also does not 

constitute a change or an increase in 

burden because these entities are 

already required to record disclosures, 

pursuant to § 99.32(b)(2). 

Section 99.35(a)(3) would be a new 

requirement that requires the agency 

headed by an official listed in 

§ 99.31(a)(3) to use a written agreement 

to designate any authorized 

representative other than an agency 

employee. Under the proposed 

regulations, the agreement would need 

to: (1) Designate the individual or entity 

as an authorized representative; (2) 

specify the information to be disclosed 

and the purpose for which the 

information is disclosed to the 

authorized representative (i.e., to carry 

out an audit or evaluation of Federal or 

State supported education programs, or 

for the enforcement of or compliance 

with Federal legal requirements that 

relate to those programs); (3) require the 

authorized representative to destroy or 

return to the State or local educational 

authority or agency headed by an 

official listed in § 99.31(a)(3) personally 

identifiable information from education 

records when the information is no 

longer needed for the purpose specified; 

(4) specify the time period in which the 

information must be returned or 

destroyed; and (5) establish policies and 

procedures consistent with FERPA and 

other Federal and State privacy and 

confidentiality provisions to protect 

personally identifiable information from 

education records from further 

disclosure (except back to the disclosing 

entity) and unauthorized use, included 

limiting use of information by only 

those authorized representatives of the 

entity with legitimate interested. The 

burden for States under this provision is 

estimated at 40 hours annually for each 

educational authority (one for K–12 and 

one for postsecondary). 

If you want to comment on the 

proposed information collection 

requirements in these proposed 

regulations, please send your comments 

to the Office of Information and 

Regulatory Affairs, OMB, Attention: 

Desk Officer for the U.S. Department of 

Education. Send these comments by 

e-mail to OIRA_DOCKET@omb.eop.gov 

or by fax to (202) 395–6974. 

Commenters need only submit 

comments via one submission medium. 

You may also send a copy of these 

comments to the Department contact 

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Federal Register / Vol. 76, No. 68 / Friday, April 8, 2011 / Proposed Rules 19737 

named in the ADDRESSES section of this 

preamble. 

We consider your comments on these 

proposed collections of information in— 

• Deciding whether the proposed 

collections are necessary for the proper 

performance of our functions, including 

whether the information will have 

practical use; 

• Evaluating the accuracy of our 

estimate of the burden of the proposed 

collections, including the validity of our 

methodology and assumptions; 

• Enhancing the quality, usefulness, 

and clarity of the information we 

collect; and 

• Minimizing the burden on those 

who must respond. This includes 

exploring 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, to ensure 

that OMB gives your comments full 

consideration, it is important that OMB 

receives the comments within 30 days 

of publication. This does not affect the 

deadline for your comments to us on the 

proposed regulations. 

Intergovernmental Review 

This program is not subject to 

Executive Order 12372 and the 

regulations in 34 CFR part 79. 

Assessment of Educational Impact 

In accordance with section 411 of the 

General Education Provisions Act, 20 

U.S.C. 1221e–4, 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/ 

news/fedregister. 

To use PDF, you must have Adobe 

Acrobat Reader, which is available free 

at this site. 

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 via the 

Federal Digital System at http:// 

www.gpo.gov/fdsys. 

(Category of Federal Domestic Assistance 

Number does not apply.) 

List of Subjects in 34 CFR Part 99 

Administrative practice and 

procedure, Education records, 

Education research, Information, 

Personally identifiable information, 

Privacy, Records, Statewide 

longitudinal data systems. 

Dated: April 1, 2011. 

Arne Duncan, 

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: 

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 99.3 is amended by: 

A. Adding, in alphabetical order, 

definitions for ‘‘authorized 

representative’’ and ‘‘education 

program’’. 

B. Revising the definition of 

‘‘directory information’’. 

The additions and revision read as 

follows: 

§ 99.3 What definitions apply to these 

regulations? 

* * * * * 

Authorized representative means any 

entity or individual designated by a 

State or local educational authority or 

an agency headed by an official listed in 

§ 99.31(a)(3) to conduct—with respect to 

Federal or State supported education 

programs—any audit, evaluation, or 

compliance or enforcement activity in 

connection with Federal legal 

requirements that relate to those 

programs. 

(Authority: 20 U.S.C. 1232g(b)(1)(C), (3), and 

(5)) 

* * * * * 

Directory information means 

information contained in an education 

record of a student that would not 

generally be considered harmful or an 

invasion of privacy if disclosed. 

(a) Directory information includes, 

but is not limited to, the student’s name; 

address; telephone listing; electronic 

mail address; photograph; date and 

place of birth; major field of study; 

grade level; enrollment status (e.g., 

undergraduate or graduate, full-time or 

part-time); dates of attendance; 

participation in officially recognized 

activities and sports; weight and height 

of members of athletic teams; degrees, 

honors, and awards received; and the 

most recent educational agency or 

institution attended. 

(b) Directory information does not 

include a student’s— 

(1) Social security number; or 

(2) Student identification (ID) 

number, except as provided in 

paragraph (c) of this section. 

(c) Directory information includes— 

(1) A student ID number, user ID, or 

other unique personal identifier used by 

a student for purposes of accessing or 

communicating in electronic systems, 

but only if the identifier cannot be used 

to gain access to education records 

except when used in conjunction with 

one or more factors that authenticate the 

user’s identity, such as a personal 

identification number (PIN), password 

or other factor known or possessed only 

by the authorized user; and 

(2) A student ID number or other 

unique personal identifier that is 

displayed on a student ID badge, but 

only if the identifier cannot be used to 

gain access to education records except 

when used in conjunction with one or 

more factors that authenticate the user’s 

identity, such as a PIN, password, or 

other factor known or possessed only by 

the authorized user. 

(Authority: 20 U.S.C. 1232g(a)(5)(A)) 

* * * * * 

Education program means any 

program that is principally engaged in 

the provision of education, including, 

but not limited to, early childhood 

education, elementary and secondary 

education, postsecondary education, 

special education, job training, career 

and technical education, and adult 

education. 

(Authority: 20 U.S.C. 1232g(b)(3), (5)) 

* * * * * 

3. Section 99.31 is amended by: 

A. Redesignating paragraphs (a)(6)(ii) 

through (v) as paragraphs (a)(6)(iii) 

through (vi), respectively. 

B. Adding a new paragraph (a)(6)(ii). 

C. Revising the introductory text of 

newly redesignated paragraph (a)(6)(iii). 

D. Revising the introductory text of 

newly redesignated paragraph 

(a)(6)(iii)(C). 

E. Revising newly redesignated 

paragraph (a)(6)(iii)(C)(4). 

F. Revising newly redesignated 

paragraph (a)(6)(iv). 

G. Revising newly redesignated 

paragraph (a)(6)(v). 

The addition and revisions read as 

follows: 

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19738 Federal Register / Vol. 76, No. 68 / Friday, April 8, 2011 / Proposed Rules 

§ 99.31 Under what conditions is prior 

consent not required to disclose 

information? 

(a) * * * 

(6) * * * 

(ii) Nothing in the Act or this part 

prevents a State or local educational 

authority or agency headed by an 

official listed in paragraph (a)(3) of this 

section from entering into agreements 

with organizations conducting studies 

under paragraph (a)(6)(i) of this section 

and redisclosing personally identifiable 

information from education records on 

behalf of educational agencies and 

institutions that disclosed the 

information to the State or local 

educational authority or agency headed 

by an official listed in paragraph (a)(3) 

of this section in accordance with the 

requirements of § 99.33(b). 

(iii) An educational agency or 

institution may disclose personally 

identifiable information under 

paragraph (a)(6)(i) of this section, and a 

State or local educational authority or 

agency headed by an official listed in 

paragraph (a)(3) of this section may 

redisclose personally identifiable 

information under paragraph (a)(6)(i) 

and (a)(6)(ii) of this section, only if— 

* * * * * 

(C) The educational agency or 

institution or the State or local 

educational authority or agency headed 

by an official listed in paragraph (a)(3) 

of this section enters into a written 

agreement with the organization that— 

* * * * * 

(4) Requires the organization to 

destroy or return to the educational 

agency or institution or the State or 

local educational authority or agency 

headed by an official listed in paragraph 

(a)(3) of this section all personally 

identifiable information when the 

information is no longer needed for the 

purposes for which the study was 

conducted and specifies the time period 

in which the information must be 

returned or destroyed. 

(iv) An educational agency or 

institution or State or local educational 

authority or agency headed by an 

official listed in paragraph (a)(3) of this 

section is not required to initiate a study 

or agree with or endorse the conclusions 

or results of the study. 

(v) If the Family Policy Compliance 

Office determines that a third party, 

outside the educational agency or 

institution, or the State or local 

educational authority or agency headed 

by an official listed in paragraph (a)(3) 

of this section to which personally 

identifiable information is disclosed 

under paragraph (a)(6) of this section, 

violates paragraph (a)(6)(iii)(B) of this 

section, then the educational agency or 

institution, or the State or local 

educational authority or agency listed in 

paragraph (a)(3) of this section from 

which the personally identifiable 

information originated may not allow 

the third party responsible for the 

violation of paragraph (a)(6)(iii)(B) of 

this section access to personally 

identifiable information from education 

records for at least five years. 

* * * * * 

4. Section 99.35 is amended by: 

A. Revising paragraph (a)(2). 

B. Adding a new paragraph (a)(3). 

C. Revising paragraph (b). 

D. Adding a new paragraph (d). 

E. Revising the authority citation at 

the end of the section. 

The additions and revisions read as 

follows: 

§ 99.35 What conditions apply to 

disclosure of information for Federal or 

State program purposes? 

(a) * * * 

(2) The State or local educational 

authority or agency headed by an 

official listed in § 99.31(a)(3) is 

responsible for using reasonable 

methods to ensure that any entity or 

individual designated as its authorized 

representative— 

(i) Uses personally identifiable 

information from education records 

only to carry out an audit, evaluation, or 

an activity for the purpose of 

enforcement of, or ensuring compliance 

with, Federal legal requirements related 

to Federal or State supported education 

programs; 

(ii) Protects the personally identifiable 

information from further disclosures or 

other uses, except as authorized in 

paragraph (b)(1) of this section; and 

(iii) Destroys the personally 

identifiable information in accordance 

with the requirements of paragraphs (b) 

and (c) of this section. 

(3) The State or local educational 

authority or agency headed by an 

official listed in § 99.31(a)(3) must use a 

written agreement to designate any 

authorized representative, other than an 

employee. The written agreement 

must— 

(i) Designate the individual or entity 

as an authorized representative; 

(ii) Specify the information to be 

disclosed and that the purpose for 

which the information is disclosed to 

the authorized representative is to carry 

out an audit or evaluation of Federal or 

State supported education programs, or 

to enforce or to comply with Federal 

legal requirements that relate to those 

programs; 

(iii) Require the authorized 

representative to destroy or return to the 

State or local educational authority or 

agency headed by an official listed in 

§ 99.31(a)(3) personally identifiable 

information from education records 

when the information is no longer 

needed for the purpose specified; 

(iv) Specify the time period in which 

the information must be returned or 

destroyed; and 

(v) Establish policies and procedures, 

consistent with FERPA and other 

Federal and State confidentiality and 

privacy provisions, to protect personally 

identifiable information from education 

records from further disclosure (except 

back to the disclosing entity) and 

unauthorized use, including limiting 

use of personally identifiable 

information to only authorized 

representatives with legitimate interests. 

(b) Information that is collected under 

paragraph (a) of this section must— 

(1) Be protected in a manner that does 

not permit personal identification of 

individuals by anyone other than the 

authorities or agencies headed by 

officials referred to in paragraph (a) of 

this section and their authorized 

representatives, except that those 

authorities and agencies may make 

further disclosures of personally 

identifiable information from education 

records on behalf of the educational 

agency or institution in accordance with 

the requirements of § 99.33(b); and 

(2) Be destroyed when no longer 

needed for the purposes listed in 

paragraph (a) of this section. 

* * * * * 

(d) If the Family Policy Compliance 

Office finds that a State or local 

educational authority, an agency headed 

by an official listed in § 99.31(a)(3), or 

an authorized representative of a State 

or local educational authority or an 

agency headed by an official listed in 

§ 99.31(a)(3), improperly rediscloses 

personally identifiable information from 

education records, the educational 

agency or institution from which the 

personally identifiable information 

originated may not allow the authorized 

representative, or the State or local 

educational authority or the agency 

headed by an official listed in 

§ 99.31(a)(3), or both, access to 

personally identifiable information from 

education records for at least five years. 

(Authority: 20 U.S.C. 1232g(b)(1)(C), (3), and 

(5)) 

5. Section 99.37 is amended by: 

A. Revising paragraph (c). 

B. Redesignating paragraph (d) as 

paragraph (e) and adding a new 

paragraph (d). 

The additions and revisions read as 

follows: 

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Federal Register / Vol. 76, No. 68 / Friday, April 8, 2011 / Proposed Rules 19739 

§ 99.37 What conditions apply to 

disclosing directory information? 

* * * * * 

(c) A parent or eligible student may 

not use the right under paragraph (a)(2) 

of this section to opt out of directory 

information disclosures to— 

(1) Prevent an educational agency or 

institution from disclosing or requiring 

a student to disclose the student’s name, 

identifier, or institutional e-mail address 

in a class in which the student is 

enrolled; or 

(2) Prevent an educational agency or 

institution from requiring a student to 

wear, to display publicly, or to disclose 

a student ID card or badge that exhibits 

information that may be designated as 

directory information under § 99.3 and 

that has been properly designated by the 

educational agency or institution as 

directory information in the public 

notice provided under paragraph (a)(1) 

of this section. 

(d) In its public notice to parents and 

eligible students in attendance at the 

agency or institution that is described in 

paragraph (a) of this section, an 

educational agency or institution may 

specify that disclosure of directory 

information will be limited to specific 

parties, for specific purposes, or both. 

When an educational agency or 

institution specifies that disclosure of 

directory information will be limited to 

specific parties, for specific purposes, or 

both, the educational agency or 

institution must limit its directory 

information disclosures to those 

specified in its public notice that is 

described in paragraph (a) of this 

section. 

* * * * * 

6. Section 99.60 is amended by 

redesignating paragraph (a) as paragraph 

(a)(1) and adding a new paragraph (a)(2) 

to read as follows: 

§ 99.60 What functions has the Secretary 

delegated to the Office and to the Office of 

Administrative Law Judges? 

(a) * * * 

(2) Solely for the purposes of this 

subpart, an ‘‘educational agency or 

institution’’ includes any public or 

private agency or institution to which 

this part applies under § 99.1(a)(2), as 

well as any State or local educational 

authority or any other recipient to 

which funds have been made available 

under any program administered by the 

Secretary, including funds provided by 

grant, cooperative agreement, contract, 

subgrant, or subcontract. 

* * * * * 

[FR Doc. 2011–8205 Filed 4–7–11; 8:45 am] 

BILLING CODE 4000–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2005–TX–0013; 

FRL–9290–1] 

Approval and Promulgation of 

Implementation Plans; Texas; System 

Cap Trading Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Withdrawal of proposed rule. 

SUMMARY: On November 18, 2010 (75 FR 

70654), EPA published a proposed rule 

to disapprove severable portions of two 

revisions to the Texas State 

Implementation Plan (SIP) submitted by 

the State of Texas on May 1, 2001, and 

August 16, 2007, that create and amend 

the System Cap Trading (SCT) Program 

at Title 30 Texas Administrative Code, 

Chapter 101—General Air Quality, 

Subchapter H—Emissions Banking and 

Trading, Division 5, sections 101.380, 

101.382, 101.383, and 101.385. We 

proposed disapproval because the SCT 

Program lacks several necessary 

components for emissions trading 

programs as outlined in EPA’s 

Economic Incentive Program Guidance. 

Subsequent to our proposed 

disapproval, EPA received a letter dated 

March 4, 2011, from the Texas 

Commission on Environmental Quality 

(TCEQ) stating that the May 1, 2001, and 

August 16, 2007, SCT Program SIP 

submissions have been withdrawn from 

our consideration as revisions to the 

Texas SIP. Therefore, EPA is 

withdrawing our proposed disapproval 

and finds that no further action is 

necessary on the SCT Program. The 

State’s action also withdraws from 

EPA’s review the SCT Program 

component of the January 22, 2010 

Consent Decree between EPA and the 

BCCA Appeal Group, Texas Association 

of Business, and Texas Oil and Gas 

Association. This withdrawal is being 

taken under section 110 and parts C and 

D of the Federal Clean Air Act. 

DATES: The proposed rule published on 

November 18, 2010 (75 FR 70654), is 

withdrawn as of April 8, 2011. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Adina Wiley (6PD–R), Air Permits 

Section, Environmental Protection 

Agency, Region 6, 1445 Ross Avenue 

(6PD–R), Suite 1200, Dallas, TX 75202– 

2733. The telephone number is (214) 

665–2115. Ms. Wiley can also be 

reached via electronic mail at 

wiley.adina@epa.gov. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Reporting and 

recordkeeping requirements. 

Dated: March 25, 2011. 

Al Armendariz, 

Regional Administrator, EPA Region 6. 

[FR Doc. 2011–8427 Filed 4–7–11; 8:45 am] 

BILLING CODE 6560–50–P 

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