[Federal Register Volume 73, Number 94 (Wednesday, May 14, 2008)]
[Rules and Regulations]
[Pages 27747-27748]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-10775]


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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: Final regulations.

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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: (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: 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 Sec.  8.1 to modify the definition of employee to 
include both current and former employees.
     Amending Sec.  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 Sec.  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 Sec.  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.
    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

[[Page 27748]]

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.

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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

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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]

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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]

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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]

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4. Section 8.3 is amended by:
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A. In the introductory text of paragraph (a), removing the words ``or 
former employee,''.
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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''.
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C. In paragraph (b), removing the words ``or former employee'' each 
time they appear.
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D. In paragraph (b), removing the words ``room 4083, FOB-6,'' and 
adding, in their place, the words ``room 6E300, Lyndon Baines Johnson 
Building,''.
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E. In paragraph (c), removing the words ``or former employee''.
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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. E8-10775 Filed 5-13-08; 8:45 am]
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