Campus Fire Safety Right-to-Know Final Regulations
The following are extracts of the sections of the final regulations that were published by the Department of Education on October 29, 2009 relating to the Campus Fire Safety Right-to-Know. These are only extracts and the reader is encouraged to download the regulations published for the Higher Education Opportunity Act to determine if there are other sections that are relevant to your institution. PDF 2.05 mb
[Federal Register: October 29, 2009 (Volume 74, Number 208)]
[Rules and Regulations]
[Page 55901-55969]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29oc09-24]
[[Page 55901]]
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Part II
Department of Education
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34 CFR Parts 600, 668, 675, et al.
General and Non-Loan Programmatic Issues; Final Rule
[[Page 55902]]
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DEPARTMENT OF EDUCATION
[Docket ID ED-2009-OPE-0005]
34 CFR Parts 600, 668, 675, 686, 690, and 692
RIN 1840-AC99
General and Non-Loan Programmatic Issues
AGENCY: Office of Postsecondary Education, Department of Education.
ACTION: Final regulations.
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SUMMARY: The Secretary amends the regulations for Institutional Eligibility Under the Higher Education Act of 1965, the Student Assistance General Provisions, the Federal Work-Study (FWS) Programs, the Teacher Education Assistance for College and Higher Education (TEACH) Grant Program, the Federal Pell Grant Program, and the Leveraging Educational Assistance Partnership Program (LEAP) to implement various general and non-loan provisions of the Higher Education Act of 1965 (HEA), as amended by the Higher Education Opportunity Act of 2008 (HEOA) and other recently enacted legislation.
DATES: Effective Date: These regulations are effective July 1, 2010.
Implementation date: The Secretary has determined, in accordance with section 482(c)(2)(A) of the HEA, that institutions may, at their discretion, choose to implement the new and amended provisions of Sec. Sec. 600.32(d), 668.28, 668.23(d)(4), 668.43, 675.16, 675.18(g), 675.18(i), 686.41, and 686.42 on or after November 1, 2009. For further information, see the section entitled Implementation Date of These Regulations in the SUPPLEMENTARY INFORMATION section of this preamble.
FOR FURTHER INFORMATION CONTACT:
For information related to the provisions for fire safety standards, missing students procedures, hate crime reporting, emergency response and evacuation, and students with intellectual disabilities, Jessica Finkel. Telephone: (202) 502-7647 or via the Internet at: Jessica.Finkel@ed.gov.
SUPPLEMENTARY INFORMATION: On August 21, 2009, the Secretary published a notice of proposed rulemaking (NPRM) for general and non-loan programmatic issues in the Federal Register (74 FR 42380).
Comments
Campus Safety Provisions
Reporting and Disclosure of Information (Sec. 668.41(a))
Comment: One commenter requested clarification of what would be considered an ``on-campus student housing facility.'' Specifically, the commenter questioned how this definition should be applied in cases in which there are public-private partnerships or third parties who may own or control property on areas contiguous to the campus or on university-owned property.
Discussion: The Department recognizes that there are a myriad of possible arrangements that an institution may have for housing facilities for students. Regarding whether a particular student housing facility is an ``on-campus'' facility, we refer to the current definition of the term ``campus'' in Sec. 668.46(a). To clarify, any student housing facility that is owned or controlled by the institution, or is located on property that is owned or controlled by the institution, and is within the reasonably contiguous geographic area that makes up the campus is considered an on-campus student housing facility.
Changes: None.
Annual Fire Safety Report--Definitions of Terms (Sec. 668.49(a))
Comment: One commenter suggested that the definition of value of property damage should be revised to include only the damage to property, furnishings, and equipment that is owned, leased, or otherwise controlled by the institution. The commenter argued that it could be burdensome for institutions to determine the value of property and contents that are owned by third parties and that this information could be deemed private by the other party. In addition, the commenter suggested that institutions should have the option to provide explanatory text and clarifying information for estimates of property damage. The concern was that a high dollar value may create false concern as to the safety on campus, when in reality, a high value could be from damage to a single piece of expensive equipment.
Discussion: The definition of the value of property damage applies to an on-campus student housing facility and includes the value of property and the contents within. The Department recognizes that many of the contents on a property may be owned by third parties. However, because the statute requires that information be provided about damage caused by fires in on-campus student housing facilities, this estimate should include the value of property that is not owned or controlled by the institution. Although an institution may not be able to determine the exact value of the contents, it must give the most accurate estimate possible in order to be in compliance with the regulation. With regard to explanatory text, institutions have the flexibility to include additional information in the annual fire safety report. In reporting statistics to the Department, the Web-based collection tool will include space for institutions to include explanatory text for each item that will be viewable on the public Web site.
Changes: None.
Comment: One commenter stated that the definition of fire in Sec. 668.49(a) was ambiguous and needed to be clarified. Specifically, the commenter suggested that phrases such as ``open flame or other burning in a place not intended to contain the burning or in an uncontrolled manner'' and ``place'' could be interpreted differently by institutions and, therefore, could undermine the consistency of the definition of ``fire'' for statistical and comparative purposes. Further, the commenter suggested an alternate definition drawn from insurance law that would include the concept of a ``hostile fire,'' or one that includes any combustion that cannot be controlled, escapes from where it was initially set and confined, and that was not intended to exist. The commenter also questioned the feasibility of gathering statistics on each instance of a fire that does not result in injury, death, or property damage, suggesting that reports of insignificant fires will obscure attention to serious fire problems or trends.
Discussion: Section 485(i)(1)(A) of the HEA requires that institutions collect and report statistics on the number of fires in each on-campus student housing facility, and section 485(i)(3) of the HEA further requires that institutions maintain a log of all fires that occur in any on-campus student housing facility. The Department and non-Federal negotiators worked diligently to define the term fire, understanding that it is difficult to devise a definition that will cover all of the fires that we intend to be included yet still exclude the ones that we do not. The negotiators reached a tentative agreement on the definition of fire, and the Department wishes to preserve this language. We continue to believe that the definition set forth in the proposed regulations can reasonably be interpreted and applied by institutions.
In addition, under the HEA all fires will be included in the institution's statistics and in the fire log. Therefore, the definition of fire arguably may not be limited to only fires that result in injury, death, or property damage. Further, as stated in the preamble to the NPRM, an institution's policies regarding fire safety do not affect the classification of whether a fire meets the definition of fire. As an example, one commenter suggested that a candle wick might be a ``place'' that is intended to contain burning, but that student residence hall policies might prohibit candles, rendering the candle wick no longer a ``place'' intended to contain a flame because the candle should not be there at all. However, a candle wick is still a place intended to contain burning, regardless of whether candles are prohibited under an institution's policies. The Department anticipates including additional examples in a revised version of the Handbook for Campus Crime Reporting to provide guidance to institutions in complying with these regulations.
Changes: None.
Annual Fire Safety Report--Statistics (Sec. 668.49(b) and (c))
Comment: One commenter suggested that an institution should not be responsible for tracking an individual with a fire-related injury who has separated from the university for the purpose of potentially including that individual in the institution's statistics on fire-related deaths. If that individual dies within one year of sustaining injuries as a result of a fire, then the institution may not know whether that individual died as a result of those injuries.
Discussion: The regulations do not require an institution to track an individual that separates from, and is no longer in contact with, the institution. However, the institution is expected to make a reasonable effort to ascertain whether an individual's death is considered a fire-related death, as defined in Sec. 668.49(a). For example, if an individual with fire-related injuries is hospitalized a few miles from the institution, the institution may reasonably be expected to track this person for potential inclusion in the institution's statistics. By contrast, if an individual separates from the institution and travels to another country, the institution may not be expected to track them for inclusion in the institution's statistics.
Changes: None.
Annual Fire Safety Report--Description of Policies (Sec. 668.49(b))
Comment: One commenter suggested that we revise the language related to the reporting of fire statistics under proposed Sec. 668.49 to specify that these statistics include fires that are reported to a ``campus fire authority.''
Discussion: Institutions are expected to collect information about, and report on, all fires regardless of whether they were reported to a campus fire authority. Fires may be reported to a variety of authorities at an institution other than a campus fire authority (e.g., to a residence life officer). The intent of the regulations is to include these fires in an institution's statistics and fire log.
Changes: None.
Comment: Two commenters suggested that the Department require that institutions have fire doors and other doors in the path of exit from a fire inspected at least annually and disclose in their annual fire safety report how often the doors are inspected. The commenters noted that proper maintenance and inspection of every fire safety system element is critical to ensure that these elements can function in the
case of a fire.
Discussion: We define a fire safety system in Sec. 668.49(a) as ``any mechanism or system related to the detection of a fire, the warning resulting from a fire, or the control of a fire,'' listing elements including, among others, sprinkler systems, fire detection devices, stand-alone smoke alarms, and fire doors and walls as examples of what might be included in a fire safety system. The commenter correctly states that maintenance and inspection of a fire safety system can help ensure that the elements are properly functioning. Institutions are required to describe the fire safety system in each on-campus student housing facility, and an institution may provide information about how often the elements of each fire safety system are inspected or maintained in this description. The Department expects that an institution will adequately maintain the elements of its fire safety systems. However, we do not intend to specify a maintenance or inspection schedule for each of these elements.
Changes: None.
Annual Fire Safety Report--General (Sec. 668.49)
Comment: One commenter suggested a number of minor changes to a variety of provisions, including:
Replacing the phrase ``may include'' in the definition of a fire-related injury in Sec. 668.49(a) with the word ``includes'';
Replacing the words ``faculty, staff'' in the definition of a fire-related injury in Sec. 668.49(a) and in the requirement that an institution include policies regarding fire safety education and training programs in its annual fire safety report in Sec. 668.49(b)(6) with the word ``employees'';
Replacing the words ``resulting from'' in the definition of a fire-safety system in Sec. 668.49(a) with ``of'';
Replacing the phrase ``smoke, water, and overhaul'' in the definition of value of property damage in Sec. 668.49(a) with ``smoke and water''; and
Revising the Sec. 668.49(c)(1)(ii) to read ``The number of persons who received fire-related injuries that resulted in treatment at a medical facility, including at an on-campus health center.''
Discussion: We agree to make some of these changes. In particular, we agree with the commenter that institutions should include the number of persons who received fire-related injuries, as opposed to the actual number of injuries, as a single person may have more than one injury. We also agree that the term ``employees'' is more precise than the words ``faculty, staff'' and have revised the regulations accordingly.
Changes: We have revised the language in Sec. 668.49(c)(1)(ii) to clarify that the number of injuries refers to the number of people with fire-related injuries. We have also replaced the words ``faculty, staff'' with the word ``employees'' in both Sec. 668.49(a) and Sec. 668.49(b)(6).
Comment: One commenter suggested that we revise Sec. 668.43 to include two additional disclosures specified in the HEOA that require institutions to disclose their policies on vaccination, and information on diversity of the student body.
Discussion: The Department is not addressing all of the self-implementing provisions of the HEOA in these regulations. We intend to publish separate regulations covering these new disclosures.
Changes: None.
Fire Safety Standards
Section 668.41(e)--Annual Fire Safety Report
The final regulations provide that institutions that maintain an on-campus student housing facility must distribute an annual fire safety report and to create publication requirements for the annual fire safety report that are similar to the long-standing rules for the annual security report.
The final regulations allow an institution to publish the annual security report and the annual fire safety report together, as long as the title of the document clearly states that it contains both the annual security report and the annual fire safety report. If an institution chooses to publish the reports separately, it would have to include information in each of the two reports about how to directly access the other report.
While the current regulations point to both OMB 1845-0004 and OMB 1845-0010, OMB 1845-0010 has recently been discontinued. The burden associated with the data collection and reporting for the annual fire safety report is reflected in Sec. 668.49 as reported under OMB
Control Number 1845-NEW3.
Section 668.49--Annual Fire Safety Report
The final regulations define the following terms relevant to the fire safety reporting requirements: Cause of fire; Fire; Fire drill; Fire-related injury; Fire-related death; Fire-safety system; and Value of property damage.
The final regulations require an institution to report to the public, the statistics that it submits to the Department in its annual fire safety report. The institution must provide data for the three most recent calendar years for which data are available. The first full report to contain the full three years of data would be the report due on October 1, 2012.
The final regulations outline the elements that an institution must disclose in its annual fire safety report, including: Fire statistics; A description of each on-campus student housing facility fire safety
system; The number of regular, mandatory, supervised fire drills held during the previous calendar year; Policies or rules on portable electrical appliances, smoking, and open flames in student housing facilities; Procedures for student housing evacuation in the case of a fire; Policies on fire safety education and training programs provided to students, faculty, and staff; A list of the titles of each person or organization to which students and employees should report that a fire has occurred; and Plans for future improvements in fire safety.
The final regulations specify that an institution that maintains an on-campus student housing facility must maintain a written and easily understood fire log that records, by the date that the fire was reported (as opposed to by the date that the fire occurred), any fire that occurred in an on-campus student housing facility. The log would have to include the nature, date, time, and general location of each fire, and require that the log be available for the public. These final regulations also implement the statutory requirement that an institution make an annual report to the campus community on the fires recorded in the fire log; however, this requirement may be satisfied by the annual fire safety report described in final Sec. 668.49(b).
We estimate that the final regulations will increase burden for institutions by 7,283 hours in OMB Control Number 1845-NEW3.
Sec. 668.41 Reporting and disclosure of information.
(a) * * *
On-campus student housing facility: A dormitory or other residential facility for students that is located on an institution's campus, as defined in Sec. 668.46(a).
* * * * *
(e) Annual security report and annual fire safety report. (1) Enrolled students and current employees--annual security report and annual fire safety report. By October 1 of each year, an institution must distribute to all enrolled students and current employees its annual security report described in Sec. 668.46(b), and, if the institution maintains an on-campus student housing facility, its annual fire safety report described in Sec. 668.49(b), through appropriate publications and mailings, including--
(i) Direct mailing to each individual through the U.S. Postal Service, campus mail, or electronic mail;
(ii) A publication or publications provided directly to each individual; or
(iii) Posting on an Internet Web site or an Intranet Web site, subject to paragraph (e)(2) and (3) of this section.
(2) Enrolled students--annual security report and annual fire safety report. If an institution chooses to distribute either its annual security report or annual fire safety report to enrolled students by posting the disclosure or disclosures on an Internet Web site or an Intranet Web site, the institution must comply with the requirements of paragraph (c)(2) of this section.
(3) Current employees--annual security report and annual fire safety report. If an institution chooses to distribute either its annual security report or annual fire safety report to current employees by posting the disclosure or disclosures on an Internet Web site or an Intranet Web site, the institution must, by October 1 of each year, distribute to all current employees a notice that includes a statement of the report's availability, the exact electronic address at which the report is posted, a brief description of the report's contents, and a statement that the institution will provide a paper copy of the report upon request.
(4) Prospective students and prospective employees--annual security report and annual fire safety report. For each of the reports, the institution must provide a notice to prospective students and prospective employees that includes a statement of the report's availability, a description of its contents, and an opportunity to request a copy. An institution must provide its annual security report and annual fire safety report, upon request, to a prospective student or prospective employee. If the institution chooses to provide either its annual security report or annual fire safety report to prospective students and prospective employees by posting the disclosure on an Internet Web site, the notice described in this paragraph must include the exact electronic address at which the report is posted, a brief description of the report, and a statement that the institution will provide a paper copy of the report upon request.
(5) Submission to the Secretary--annual security report and annual fire safety report. Each year, by the date and in a form specified by the Secretary, an institution must submit the statistics required by
Sec. Sec. 668.46(c) and 668.49(c) to the Secretary.
(6) Publication of the annual fire safety report. An institution may publish its annual fire safety report concurrently with its annual security report only if the title of the report clearly states that the report contains both the annual security report and the annual fire safety report. If an institution chooses to publish the annual fire safety report separately from the annual security report, it must include information in each of the two reports about how to directly access the other report.
* * * * *
20. Section 668.49 is added to subpart D of part 668 to read as follows:
Sec. 668.49 Institutional fire safety policies and fire statistics.
(a) Additional definitions that apply to this section.
Cause of fire: The factor or factors that give rise to a fire. The causal factor may be, but is not limited to, the result of an intentional or unintentional action, mechanical failure, or act of nature.
Fire: Any instance of open flame or other burning in a place not intended to contain the burning or in an uncontrolled manner.
Fire drill: A supervised practice of a mandatory evacuation of a building for a fire.
Fire-related injury: Any instance in which a person is injured as a result of a fire, including an injury sustained from a natural or accidental cause, while involved in fire control, attempting rescue, or escaping from the dangers of the fire. The term ``person'' may include students, employees, visitors, firefighters, or any other individuals.
Fire-related death: Any instance in which a person--
(1) Is killed as a result of a fire, including death resulting from a natural or accidental cause while involved in fire control, attempting rescue, or escaping from the dangers of a fire; or
(2) Dies within one year of injuries sustained as a result of the fire.
Fire safety system: Any mechanism or system related to the detection of a fire, the warning resulting from a fire, or the control of a fire. This may include sprinkler systems or other fire extinguishing systems, fire detection devices, stand-alone smoke alarms, devices that alert one to the presence of a fire, such as horns, bells, or strobe lights; smoke-control and reduction mechanisms; and fire doors and walls that reduce the spread of a fire.
Value of property damage: The estimated value of the loss of the structure and contents, in terms of the cost of replacement in like kind and quantity. This estimate should include contents damaged by fire, and related damages caused by smoke, water, and overhaul; however, it does not include indirect loss, such as business interruption.
(b) Annual fire safety report. Beginning by October 1, 2010, an institution that maintains any on-campus student housing facility must prepare an annual fire safety report that contains, at a minimum, the following information:
(1) The fire statistics described in paragraph (c) of this section.
(2) A description of each on-campus student housing facility fire safety system.
(3) The number of fire drills held during the previous calendar year.
(4) The institution's policies or rules on portable electrical appliances, smoking, and open flames in a student housing facility.
(5) The institution's procedures for student housing evacuation in the case of a fire.
(6) The policies regarding fire safety education and training programs provided to the students and employees. In these policies, the institution must describe the procedures that students and employees should follow in the case of a fire.
(7) For purposes of including a fire in the statistics in the annual fire safety report, a list of the titles of each person or organization to which students and employees should report that a fire occurred.
(8) Plans for future improvements in fire safety, if determined necessary by the institution.
(c) Fire statistics. (1) An institution must report statistics for each on-campus student housing facility, for the three most recent calendar years for which data are available, concerning--
(i) The number of fires and the cause of each fire;
(ii) The number of persons who received fire-related injuries that resulted in treatment at a medical facility, including at an on-campus health center;
(iii) The number of deaths related to a fire; and
(iv) The value of property damage caused by a fire.
(2) An institution is required to submit a copy of the fire statistics in paragraph (c)(1) of this section to the Secretary on an annual basis.
(d) Fire log. (1) An institution that maintains on-campus student housing facilities must maintain a written, easily understood fire log that records, by the date that the fire was reported, any fire that occurred in an on-campus student housing facility. This log must include the nature, date, time, and general location of each fire.
(2) An institution must make an entry or an addition to an entry to the log within two business days, as defined under Sec. 668.46(a), of the receipt of the information.
(3) An institution must make the fire log for the most recent 60-day period open to public inspection during normal business hours. The institution must make any portion of the log older than 60 days available within two business days of a request for public inspection.
(4) An institution must make an annual report to the campus community on the fires recorded in the fire log. This requirement may be satisfied by the annual fire safety report described in paragraph
(b) of this section.
(Approved by the Office of Management and Budget under control number 1845-NEW3)
