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PART 8-DEMANDS FOR TESTI

MONY OR RECORDS IN LEGAL PROCEEDINGS

Sec. 8.1 What is the scope and applicability of

this part? 8.2 What definitions apply? 8.3 What are the requirements for submit

ting a demand for testimony or records? 8.4 What procedures are followed in re

sponse to a demand for testimony? 8.5 What procedures are followed in re

sponse to a demand for records? AUTHORITY: 5 U.S.C. 301; 5 U.S.C. 552; 20 U.S.C. 3474, unless otherwise noted.

SOURCE: 57 FR 34646, Aug. 5, 1992, unless otherwise noted.

$8.1 What is the scope and applica

bility of this part? (a) Except as provided in paragraph (c) of this section, this part establishes the procedures to be followed if the Department or any departmental employee receives a demand for

(1) Testimony by an employee concerning

(i) Records contained in the files of the Department;

(ii) Information relating to records contained in the files of the Department; or

(iii) Information or records acquired or produced by the employee in the course of his or her official duties or because of the employee's official status; or

(2) The production or disclosure of any information or records referred to in paragraph (a)(1) of this section.

(b) This part does not create any right or benefit, substantive or procedural, enforceable by any person against the Department.

(c) This part does not apply to

(1) Any proceeding in which the United States is a party before an adjudicative authority;

(2) A demand for testimony or records made by either House of Congress or, to the extent of matter within its jurisdiction, any committee or subcommittee of Congress; or

(3) An appearance by an employee in his or her private capacity in a legal proceeding in which the employee's

testimony does not relate to the mission or functions of the Department. (Authority: 5 U.S.C. 301; 20 U.S.C. 3474) 88.2 What definitions apply?

The following definitions apply to this part:

Adjudicative authority includes, but is not limited to

(1) A court of law or other judicial forums; and

(2) Mediation, arbitration, or other forums for dispute resolution.

Demand includes a subpoena, subpoena duces tecum, request, order, or other notice for testimony or records arising in a legal proceeding.

Department means the U.S. Department of Education,

Employee means a current employee or official of the Department or of an advisory committee of the Department, including a special government employee, unless specifically provided otherwise in this part.

Legal proceeding means

(1) A proceeding before an adjudicative authority;

(2) A legislative proceeding, except for a proceeding before either House of Congress or before any committee or subcommittee of Congress, to the extent of matter within the committee's or subcommittee's jurisdiction; or

(3) An administrative proceeding.

Secretary means the Secretary of Education or an official or employee of the Department acting for the Secretary under a delegation of authority.

Testimony means statements made in connection with a legal proceeding, including but not limited to statements in court or other forums, depositions, declarations, affidavits, or responses to interrogatories.

United States means the Federal Government of the United States and any of its agencies or instrumentalities. (Authority: 5 U.S.C. 301; 20 U.S.C. 3474) 88.3 What are the requirements for

submitting a demand for testimony

or records? (a) A demand for testimony of an employee or former employee, or a demand for records issued pursuant to the rules governing the legal proceeding in which the demand arises

(1) Must be in writing; and

(2) Must state the nature of the requested testimony or records and why the information sought is unavailable by any other means.

(b) Service of a demand for testimony of an employee or former employee must be made on the employee or former employee whose testimony is demanded, with a copy simultaneously delivered to the General Counsel, U.S. Department of Education, Office of the General Counsel, 400 Maryland Avenue, SW., room 4083, FOB-6, Washington, DC 20202-2100.

(c) Service of a demand for records, as described in $8.5(a)(1), must be made on an employee or former employee who has custody of the records, with a copy simultaneously delivered to the General Counsel at the address listed in paragraph (b) of this section. For assistance in identifying the custodian of the specific records demanded, contact the Records Management Branch Chief, Office of Information Resources Management, U.S. Department of Education, 7th and D Streets, SW., ROB-3, Washington, DC 20202–4753. (Authority: 5 U.S.C. 301; 20 U.S.C. 3474) (Approved by the Office of Management and Budget under control number 1801-0002) [57 FR 34646, Aug. 1992, as amended at 58 FR 7860, Feb. 9, 1993)

the Department and protecting the human and financial resources of the United States.

(2) The Secretary may establish conditions under which the employee may testify.

(d) If a response to a demand for testimony is required before the Secretary determines whether to allow an employee to testify the employee or counsel for the employee shall

(1) Inform the court or other authority of the regulations in this part; and

(2) Request that the demand be stayed pending the employee's receipt of the Secretary's instructions.

(e) If the court or other authority declines the request for a stay, or rules that the employee must comply with the demand regardless of the Secretary's instructions, the employee or counsel for the employee shall respectfully decline to comply with the demand, citing United States ex tel. Touhy v. Ragen, 340 U.S. 462 (1951), and the regulations in this part. (Authority: 5 U.S.C. 301; 20 U.S.C. 3474)

88.4 What procedures are followed in

response to a demand for testi

mony? (a) After an employee receives a demand for testimony, the employee shall immediately notify the Secretary and request instructions.

(b) An employee may not give testimony without the prior written authorization of the Secretary.

(C)(1) The Secretary may allow an employee to testify if the Secretary determines that the demand satisfies the requirements of $8.3 and that granting permission

(i) Would be appropriate under the rules of procedure governing the matter in which the demand arises and other applicable laws, rules, and regulations; and

(ii) Would not be contrary to an interest of the United States, which includes furthering a public interest of

$ 8.5 What procedures are followed in

response to a demand for records? (a)(1) After an employee receives a demand for records issued pursuant to the rules governing the legal proceeding in which the demand arises, the employee shall immediately notify the Secretary and request instructions.

(2) If an employee receives any other demand for records, the Department

(i) Considers the demand to be a request for records under the Freedom of Information Act; and

(ii) Handles the demand under rules governing public disclosure, as established in 34 CFR part 5.

(b) An employee may not produce records in response to a demand as described in paragraph (a)(1) of this section without the prior written authorization of the Secretary.

(C) The Secretary may make these records available if the Secretary determines that the demand satisfies the requirements of 8 8.3 and that disclosure

(1) Would be appropriate under the rules of procedure governing the matter in which the demand arises and other applicable laws, rules, and regulations; and

(2) Would not be contrary to an inter 12.10 How is a Public Benefit Allowance est of the United States, which in

(PBA) calculated? cludes furthering a public interest of the Department and protecting the

Subpart C-Conditions Applicable to human and financial resources of the

Transfers or Leases United States.

12.11 What statutory provisions and Execu(d) If a response to a demand for tive Orders apply to transfers of surplus records as described in paragraph (a)(1)

Federal real property? of this section is required before the

12.12 What are the terms and conditions of Secretary determines whether to allow

transfers or leases of surplus Federal real

property? an employee to produce those records,

12.13 When is use of the transferred surplus the employee or counsel for the em

Federal real property by entities other ployee shall

than the transferee or lessee permissible? (1) Inform the court or other authority of the regulations in this part; and

Subpart D-Enforcement (2) Request that the demand be

12.14 What are the sanctions for noncomplistayed pending the employee's receipt

ance with a term or condition of a transof the Secretary's instructions.

fer or lease of surplus Federal real prop(e) If the court or other authority de erty? clines the request for a stay, or rules that the employee must comply with

Subpart E-Abrogation the demand regardless of the Sec 12.15 What are the procedures for securing retary's instructions, the employee or an abrogation of the conditions and recounsel for the employee shall respect strictions contained in the conveyance fully decline to comply with the de instrument? mand, citing United States ex rel. Touhy APPENDIX A TO PART 12--PUBLIC BENEFIT ALV. Ragen, 340 U.S. 462 (1951), and the LOWANCE FOR TRANSFER OF SURPLUS FEDregulations in this part.

ERAL REAL PROPERTY FOR EDUCATIONAL

PURPOSES (Authority: 5 U.S.C. 301; 5 U.S.C. 552; 20 U.S.C. 3474)

AUTHORITY: 40 U.S.C. 471-488; 20 U.S.C. 3401 et seq.; 42 U.S.C. 2000d (1) et seq.; 20 U.S.C. 1681

et seq.; 29 U.S.C. 794 et seq.; 42 U.S.C. 4332. PART 12-DISPOSAL AND UTILIZA

SOURCE: 57 FR 60394, Dec. 18, 1992, unless TION OF SURPLUS FEDERAL REAL

otherwise noted.
PROPERTY FOR EDUCATIONAL
PURPOSES

Subpart A-General
Subpart A-General

$12.1 What is the scope of this part? Sec.

This part is applicable to surplus 12.1 What is the scope of this part?

Federal real property located within 12.2 What definitions apply?

any State that is appropriate for as12.3 What other regulations apply to this signment to, or that has been assigned program?

to, the Secretary by the Administrator

for transfer for educational purposes, Subpart B-Distribution of Surplus Federal

as provided for in section 203(k) of the Real Property

Federal Property and Administrative 12.4 How does the Secretary provide notice

Services Act of 1949, as amended, 63 of availability of surplus Federal real

Stat. 377 (40 U.S.C. 471 et seq.). property?

(Authority: 40 U.S.C. 484(k)) 12.5 Who may apply for surplus Federal real property?

$ 12.2 What definitions apply? 12.6 What must an application for surplus Federal real property contain?

(a) Definitions in the Act. The fol12.7 How is surplus Federal real property lowing terms used in this part are de

disposed of when there is more than one fined in section 472 of the Act: applicant?

Administrator 12.8 What transfer or lease instruments does the Secretary use?

Surplus property 12.9 What warranties does the Secretary (b) Definitions in the Education Departgive?

ment General Administrative Regulations

(EDGAR). The following terms used in this part are defined in 34 CFR 77.1: Department Secretary State

(c) Other definitions: The following definitions also apply to this part:

Abrogation means the procedure the Secretary may use to release the transferee of surplus Federal real property from the covenants, conditions, reservations, and restrictions contained in the conveyance instrument before the term of the instrument expires.

Act means the Federal Property and Administrative Services Act of 1949, as amended, 63 Stat. 377 (40 U.S.C. 471 et seq.).

Applicant means an eligible entity as described in $12.5 that formally applies to be a transferee or lessee of surplus Federal real property, using a public benefit allowance (PBA) under the Act.

Lessee, except as used in $12.14(a)(5), means an entity that is given temporary possession, but not title, to surplus Federal real property by the Secretary for educational purposes.

Nonprofit institution means any institution, organization, or association, whether incorporated or unincorporated

(1) The net earnings of which do not inure or may not lawfully inure to the benefit of any private shareholder or individual; and

(2) That has been determined by the Internal Revenue Service to be tax-exempt under section 501(c)(3) of title 26.

Off-site property means surplus buildings and improvements—including any related personal property-that are capable of being removed from the underlying land and that are transferred by the Secretary without transferring the underlying real property.

On-site property means surplus Federal real property, including any related personal property-other than off-site property.

Period of restriction means that period during which the surplus Federal real property transferred for educational purposes must be used by the transferee or lessee in accordance with covenants, conditions, and any other re

strictions contained in the conveyance instrument.

Program and plan of use means the educational activities to be conducted by the transferee or lessee using the surplus Federal real property, as described in the application for that property.

Public benefit allowance (“PBA") means the credit, calculated in accordance with appendix A to this part, given to a transferee or lessee which is applied against the fair market value of the surplus Federal real property at the time of the transfer or lease of such property in exchange for the proposed educational use of the property by the transferee or lessee.

Related personal property means any personal property

(1) That is located on and is an integral part of, or incidental to the operation of, the surplus Federal real property; or

(2) That is determined by the Administrator to be otherwise related to the surplus Federal real property.

Surplus Federal real property means the property assigned or suitable for assignment to the Secretary by the Administrator for disposal under the Act.

Transfer means to sell and convey title to surplus Federal real property for educational purposes as described in this part.

Transferee means that entity which has purchased and acquired title to the surplus Federal real property for educational purposes pursuant to section 203(k) of the Act.

(Authority: 40 U.S.C. 472 and 20 U.S.C. 3401 et seq.)

$ 12.3 What other regulations apply to

this program? The following regulations apply to this program:

(a) 34 CFR parts 100, 104, and 106.
(b) 41 CFR part 101-47.
(c) 34 CFR part 85.

(Authority: 40 U.S.C. 484(k); 42 U.S.C. 2000d1 et seq.; 29 U.S.C. 794 et seq.; 20 U.S.C. 1681 et seq.; Executive Order 12549; and 20 U.S.C. 3474)

Subpart B-Distribution of Surplus

Federal Real Property $ 12.4 How does the Secretary provide

notice of availability of surplus

Federal real property? The Secretary notifies potential applicants of the availability of surplus Federal real property for transfer for educational uses in accordance with 41 CFR 101-47.308 4.

(g) Demonstrate that the applicant has an immediate need and ability to use all of the surplus Federal real property for which it is applying;

(h) Demonstrate that the surplus Federal real property is needed for educational purposes at the time of application and that it is so needed for the duration of the period of restriction;

(i) Demonstrate that the surplus Federal real property is suitable or adaptable to the proposed program and plan of use; and

(j) Provide information requested by the Secretary in the notice of availability, including information of the effect of the proposed program and plan of use on the environment. (Approved by the Office of Management and Budget under control number 1880-0524) (Authority: 40 U.S.C. 484(k))

(Authority: 40 U.S.C. 484(k)(1)

$ 12.5 Who may apply for surplus Fed

eral real property? The following entities may apply for surplus Federal real property:

(a) A State.

(b) A political subdivision or instrumentality of a State.

(C) A tax-supported institution. (d) A nonprofit institution.

(e) Any combination of these entities.

(Authority: 40 U.S.C. 484(k)(1)(A))

§ 12.6 What_must an application for

surplus Federal real property con

tain? An application for surplus Federal real property must

(a) Contain a program and plan of use;

(b) Contain a certification from the applicant that the proposed program is not in conflict with State or local zoning restrictions, building codes, or similar limitations;

(c) Demonstrate that the proposed program and plan of use of the surplus Federal real property is for a purpose that the applicant is authorized to carry out;

(d) Demonstrate that the applicant is able, willing, and authorized to assume immediate custody, use,

care, and maintenance of the surplus Federal real property;

(e) Demonstrate that the applicant is able, willing, and authorized to pay the administrative expenses incident to the transfer or lease;

(f) Demonstrate that the applicant has the necessary funds, or the ability to obtain those funds immediately upon transfer or lease, to carry out the proposed program and plan of use for the surplus Federal real property;

$ 12.7 How is surplus Federal real

property disposed of when there is

more than one applicant? (a) If there is more than one applicant for the same surplus Federal real property, the Secretary transfers or leases the property to the applicant whose proposed program and plan of use the Secretary determines provides the greatest public benefit, using the criteria contained in appendix A to this part that broadly address the weight given to each type of entity applying and its proposed program and plan of use. (See example in $ 12.10(d)).

(b) If, after applying the criteria described in paragraph (a) of this section, two or more applicants are rated equally, the Secretary transfers or leases the property to one of the applicants after

(1) Determining the need for each applicant's proposed educational use at the site of the surplus Federal real property;

(2) Considering the quality of each applicant's proposed program and plan of use; and

(3) Considering each applicant's ability to carry out its proposed program and plan of use.

(c) If the Secretary determines that the surplus Federal real property is capable of serving more than one applicant, the Secretary may apportion it to fit the needs of as many applicants as is practicable.

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