[Federal Register Volume 72, Number 246 (Wednesday, December 26, 2007)]
[Proposed Rules]
[Pages 72976-72978]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-24966]


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DEPARTMENT OF EDUCATION

34 CFR Part 8

[Docket ID ED-2007-OS-0138]


Demands for Testimony or Records in Legal Proceedings

AGENCY: Office of the Secretary, Department of Education.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Secretary proposes to amend the Department's 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 would apply only where employees are 
subpoenaed in litigation to which the agency is not a party. Former 
Department employees would be 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: We must receive your comments on or before February 25, 2008.

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 Under ``Search Documents'' go to ``Optional Step 
2'' and select ``Department of Education'' from the agency drop-down 
menu; then click ``Submit.'' In the Docket ID column, select ED-2007-
OS-0138 to add or view public comments and to view supporting and 
related materials available electronically. Information on using 
www.regulations.gov, including instructions for submitting comments, 
accessing documents, and viewing the docket after the close of the 
comment period, is available through the site's ``User Tips'' link.
     Postal Mail, Commercial Delivery, or Hand Delivery. If you 
mail or deliver your comments about these proposed regulations, address 
them to Christine M. Rose, U.S. Department of Education, 400 Maryland 
Avenue, SW., Room 6C122, Washington, DC 20202-2110.

    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: Christine M. Rose, Telephone: (202) 
401-6700.
    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: 

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

[[Page 72977]]

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 
www.regulations.gov. You may also inspect the comments, in person, in 
Room 6C122, 400 Maryland Avenue, SW., Washington, DC, between the hours 
of 8:30 a.m. and 4 p.m., Eastern time, Monday through Friday of each 
week except Federal holidays.

Assistance to Individuals With Disabilities in Reviewing the Rulemaking 
Record

    On request, we will supply an appropriate aid, such as a reader or 
print magnifier, to an individual with a disability who needs 
assistance to review the comments or other documents in the public 
rulemaking record for these proposed regulations. If you want to 
schedule an appointment for this type of aid, please contact the person 
listed under FOR FURTHER INFORMATION CONTACT.

Background

    The Secretary proposes to amend Sec. Sec.  8.1 through 8.3 of title 
34 of the Code of Federal Regulations (CFR). The regulations in 34 CFR 
part 8 pertain to production of information pursuant to demands in 
judicial or administrative proceedings. We are proposing these 
amendments to require that former Department employees follow the same 
set of prescribed instructions and procedures that are required of 
current employees, with respect to the production and disclosure of 
material or information acquired during the performance of the former 
employee's official duties or because of the former employee's official 
status when responding to judicially enforceable subpoenas or demands 
in judicial or administrative proceedings, except demands from the 
Congress or in Federal grand jury proceedings.

Significant Proposed Regulations

    We do not address proposed regulatory provisions that are technical 
or otherwise minor in effect.

Sections 8.1 Through 8.3--Production of Information Pursuant to Demands 
in Judicial or Administrative Proceedings

    Statute: 5 U.S.C. 301 allows an agency head to prescribe 
regulations concerning the conduct of its employees, the performance of 
its business and the custody and use of agency records.
    Current Regulations: The current regulations in 34 CFR part 8 
pertain to production of information pursuant to demands in judicial or 
administrative proceedings. The regulations prescribe instructions and 
procedures to be followed by current 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 or in Federal grand jury proceedings.
    The current regulations also specify what requirements requestors 
must follow when submitting a demand for testimony or records.
    Proposed Regulations: The proposed regulations would modify the 
definition of employee to include both current and former employees. 
With this change, the regulations would expressly require former 
employees to follow the uniform prescribed instructions and procedures 
that current employees must follow concerning disclosure or production 
of agency materials or information acquired during their employment 
with the Department in response to a judicially enforceable subpoena or 
demand. The proposed regulations also 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.
    Reason: The Department is proposing to amend the definition of 
employee to include both current and former employees in order to 
eliminate any confusion regarding whether 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 former employees.
    These proposed regulations are intended to provide an orderly means 
by which both current and former employees respond to demands for 
material and information covered by the regulations, and to protect the 
interests of the United States, including the safeguarding of 
privileged or otherwise sensitive information. The increase in the 
number of subpoenas and other demands to current and former employees 
in judicial or administrative proceedings, particularly in cases in 
which neither the Department nor the United States is a party, 
necessitates detailed and uniform instructions to be followed by both 
current and former employees. Additionally, the express inclusion of 
former employees aligns the Department's regulations to be more 
consistent with those of other agencies, including the U.S. Department 
of Justice.
    We are proposing to amend the requirements for submitting a demand 
for testimony or records in order to be consistent with current 
regulations which identify the items the Secretary must consider when 
determining whether to grant the request. The Department has an 
interest in protecting nonpublic materials and information, which 
extends to subpoenas that seek information that is privileged or 
confidential, or both, acquired during employment at the Department. 
The changes are intended to promote consistency in the agency's 
assertion of privileges and objections, and thereby prevent harm that 
may result from inappropriate disclosure of confidential information.
    These proposed regulations are consistent with the decision in the 
landmark case of United States ex rel. Touhy v. Ragen, 340 U.S. 462 
(1951), in which the Supreme Court upheld the ability of an agency head 
to issue regulations for the preservation of agency records, and 
determined that an agency employee, acting pursuant to such 
instructions, could not be held in contempt of court for declining to 
produce records in response to a subpoena duces tecum. We do not intend 
the proposed regulations to preclude disclosures or productions in 
compliance with Court orders except where disclosure would be 
inappropriate even if required by a court, e.g., where disclosure would 
be legally prohibited or would be contrary to a recognized privilege.

Executive Order 12866

1. Potential Costs and Benefits

    Under Executive Order 12866, we have assessed the potential costs 
and benefits of this regulatory action.
    The potential costs associated with the proposed regulations are 
those resulting from statutory requirements and those we have 
determined to be necessary for administering this program effectively 
and efficiently.
    In assessing the potential costs and benefits--both quantitative 
and qualitative--of this regulatory action, we have determined that the 
benefits would justify the costs.
    We have also determined that this regulatory action would not 
unduly interfere with State, local, and tribal governments in the 
exercise of their governmental functions.
Summary of Potential Costs and Benefits
    The Secretary has assessed the potential costs and benefits of this

[[Page 72978]]

regulatory action and has determined that the benefits would justify 
the costs. These 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. The anticipated costs of this regulatory action would be 
minimal.

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 ``Sec.  '' and a numbered heading; for example, 
Sec.  8.1 What is the scope and application of this part?.)
     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 these proposed regulations would not 
have a significant economic impact on a substantial number of small 
entities.

Paperwork Reduction Act of 1995

    These proposed regulations do not contain any information 
collection requirements.

Intergovernmental Review

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

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. If you have questions about using PDF, call the U.S. 
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in 
the Washington, DC, area at (202) 512-1530.

    Note: The official version of this document is the document 
published in the Federal Register. Free Internet access to the 
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: December 18, 2007.
Margaret Spellings,
Secretary of Education.
    For the reasons discussed in the preamble, the Secretary of 
Education proposes to amend 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.


Sec.  8.1  [Amended]

    2. The introductory text of Sec.  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''.


Sec.  8.2  [Amended]

    3. The definition of ``Employee'' in Sec.  8.2 is amended by adding 
the words ``or former'' between the words ``current'' and ``employee''.


Sec.  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''.

 [FR Doc. E7-24966 Filed 12-21-07; 8:45 am]
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