E8-10775. Demands for Testimony or Records in Legal Proceedings

AGENCY:

Office of the Secretary, Department of Education.

ACTION:

Final regulations.

SUMMARY:

The Secretary amends the regulations regarding the production of information pursuant to demands in judicial or administrative proceedings. The changes are intended to promote consistency in the Department's assertion of privileges and objections, and thereby prevent harm that may result from inappropriate disclosure of confidential information or inappropriate allocation of agency resources. These changes apply only where employees are subpoenaed in litigation to which the agency is not a party. Former Department employees are expressly required to seek the Secretary's approval prior to responding to subpoenas that seek non-public materials and information acquired during their employment at the Department.

DATES:

These regulations are effective June 13, 2008.

FOR FURTHER INFORMATION CONTACT:

Christine M. Rose, U.S. Department of Education, 400 Maryland Avenue, SW., room 6C122, Washington, DC 20202-2110. Telephone: [phone].

If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.

Individuals with disabilities can obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

On December 26, 2007 the Secretary published a notice of proposed rulemaking (NPRM) for this part in the Federal Register (72 FR 72976). In the preamble to the NPRM, the Secretary discussed on pages 72976 and 72977 the major changes proposed in that document to clarify the instructions and procedures to be followed by current and former Department employees with respect to the production and disclosure of material or information acquired as a result of performance of the person's official duties or because of the person's official status in response to judicially enforceable subpoenas or demands in judicial or administrative proceedings, except demands from the Congress. These included the following:

• Amending § 8.1 to modify the definition of employee to include both current and former employees.
• Amending § 8.3(a)(2) to provide that a demand for testimony or records expressly include a statement of why the release of information would not be contrary to an interest of the Department or the United States.

There are no differences between the NPRM and these final regulations.

Analysis of Comments and Changes

In response to the Secretary's invitation in the NPRM, two parties submitted comments on the proposed regulations. An analysis of the comments follows.

Comment: One commenter expressed support for the proposed changes.

Discussion: We appreciate this statement of support.

Change: None.

Comment: One commenter requested that we clarify the definition of employee in § 8.2 by changing the definition's structure to a listing so that former employees are a specific category under the definition.

Discussion: In the definition of employee in § 8.2, we added the words “or former” between the words “current” and “employee” to clarify that the regulations concerning disclosure or production of agency materials or information in judicial or administrative proceedings in response to a judicially enforceable subpoena or demand apply to both current and former employees. We do not believe that a listing, within this definition, would add additional clarity.

Change: None.

Executive Order 12866

We have reviewed these final regulations in accordance with Executive Order 12866. Under the terms of the order we have assessed the potential costs and benefits of this regulatory action.

The potential costs associated with the final regulations are those resulting from statutory requirements and those we have determined to be necessary for administering this program effectively and efficiently.

In assessing the potential costs and benefits—both quantitative and qualitative—of these final regulations, we have determined that the benefits of the regulations justify the costs.

We have also determined that this regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.

We summarized the potential costs and benefits of these final regulations in the preamble to the NPRM at 72 FR 72977 and 72978.

Paperwork Reduction Act of 1995

These regulations do not contain any information collection requirements.

Electronic Access to This Document

You can view this document, as well as all other documents of this Department 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.

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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 on GPO Access at: http://www.gpoaccess.gov/​nara/​index.html.

(Catalog of Federal Domestic Assistance Number does not apply.)

List of Subjects in 34 CFR Part 8

• Courts
• Government employees
• Reporting and recordkeeping requirements

Dated: May 8, 2008.

Margaret Spellings,

Secretary of Education.

For the reasons discussed in the preamble, the Secretary amends part 8 of title 34 of the Code of Federal Regulations as follows:

PART 8—DEMANDS FOR TESTIMONY OR RECORDS IN LEGAL PROCEEDINGS

1. The authority citation for part 8 continues to read as follows:

Authority: 5 U.S.C. 301; 5 U.S.C. 552; 20 U.S.C. 3474, unless otherwise noted.

§ 8.1

[Amended]

2. The introductory text of § 8.1(a) is amended by removing the words “if the Department or any departmental employee” and adding, in their place, the words “when the Department or any employee of the Department”.

§ 8.2

[Amended]

3. The definition of “Employee” in § 8.2 is amended by adding the words “or former” between the words “current” and “employee”.

§ 8.3

[Amended]

4. Section 8.3 is amended by:

A. In the introductory text of paragraph (a), removing the words “or former employee,”.

B. In paragraph (a)(2), removing the words “and why the information sought is unavailable by any other means” and adding, in their place, the words “, why the information sought is unavailable by any other means, and the reason why the release of the information would not be contrary to an interest of the Department or the United States”.

C. In paragraph (b), removing the words “or former employee” each time they appear.

D. In paragraph (b), removing the words “room 4083, FOB-6,” and adding, in their place, the words “room 6E300, Lyndon Baines Johnson Building,”.

E. In paragraph (c), removing the words “or former employee”.

F. In paragraph (c), removing the words “Records Management Branch Chief, Office of Information Resources Management, U.S. Department of Education, 7th and D Streets, SW., ROB-3” and adding, in their place, the words “Records Officer, Information Policy and Standards Team, Regulatory Information Management Services, Office of Management, U.S. Department of Education, 400 Maryland Avenue, SW., room 9161, PCP”.