[Federal Register: December 26, 2007 (Volume 72, Number 246)]
[Proposed Rules]
[Page 72976-72978]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26de07-28]
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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
http://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
http://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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