[Federal Register Volume 62, Number 79 (Thursday, April 24, 1997)]
[Proposed Rules]
[Pages 19941-19946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10373]


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NATIONAL CREDIT UNION ADMINISTRATION

12 CFR Part 792


Production of Nonpublic Records and Testimony of NCUA Employees 
in Legal Proceedings

AGENCY: National Credit Union Administration (NCUA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: The NCUA proposes to amend its rules regarding subpoenas 
seeking nonpublic records or the testimony of NCUA employees. The 
proposed rule provides procedures, requirements and information on how 
the NCUA will handle these matters and expressly prohibits any 
disclosure or testimony except as provided by the proposed rule. The 
effect of the rule will be, among other benefits, to insure an 
efficient use of NCUA resources, promote uniformity in decisions, 
protect confidential information, and provide guidance to parties. The 
proposed rule will also amend the current rule regarding release of 
NCUA records that are exempt from disclosure under the Freedom of 
Information Act to conform with the procedures provided in this 
proposed rule.

DATES: Comments must be received on or before June 23, 1997.

ADDRESSES: Comments should be directed to Becky Baker, Secretary of the 
Board. Mail or hand-deliver comments to: National Credit Union 
Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428. Fax 
comments to (703) 518-6319. E-mail comments to [email protected]. 
Please sends comments by one method only.

FOR FURTHER INFORMATION CONTACT: Sheila Albin, Acting Associate General 
Counsel, or Allan Meltzer, Associate General Counsel, (703) 518-6540.

SUPPLEMENTARY INFORMATION:

Background

    The NCUA receives numerous subpoenas and requests for NCUA 
employees to provide evidence in litigation. Typically, these subpoenas 
are for NCUA records that are not available to the public under the

[[Page 19942]]

Freedom of Information Act (FOIA). Also, we receive numerous subpoenas 
and requests for NCUA employees to appear as witnesses in litigation in 
conjunction with a request for nonpublic records or to provide 
testimony.
    In recent years, the number of requests has averaged about two or 
three a month. Often, these subpoenas and requests relate to litigation 
involving federally-insured credit unions where there is some issue for 
which one or both of the parties want to use nonpublic records, such as 
NCUA examination reports, as evidence in the case. In addition, the 
parties want to have an NCUA employee, often an examiner, testify to 
establish the authenticity of the records or explain the information 
contained in the records. If we provide these records and an examiner 
appears as a witness, this will mean a significant disruption in the 
examiner's work schedule. In many cases, parties want to use the 
examiner as an expert witness on matters such as the financial 
condition of the credit union or other issues involving opinions. Our 
experience has been that, in many cases, the parties can deal with 
these issues through the testimony of other witnesses, including hiring 
their own independent, expert witness, and use the parties' own 
records.
    The current regulatory provisions pertinent to these matters appear 
at two places in our regulations: regulations on subpoenas and those on 
FOIA. Our regulation relating to subpoenas is set out at 12 CFR 792.40-
792.42. It states: where a subpoena is to be served; advises persons 
who receive a subpoena requesting nonpublic records to contact the 
Office of General Counsel; and prohibits production of records in 
response to a subpoena except as authorized by the Office of General 
Counsel. These regulations contain a cross-reference to our FOIA 
regulations that are set out at 12 CFR 792.1-792.7. The FOIA 
regulations contain a section dealing with the release of documents 
that are exempt from disclosure under FOIA. 12 CFR 792.4. Briefly 
summarized, this section provides that the NCUA may disclose records 
exempt under FOIA based on a written request where there is ``good 
cause.'' In addition, the section provides that the NCUA will impose 
conditions as necessary to protect the confidentiality of the records.
    Current regulations fail to inform persons submitting a subpoena 
about the factors that the NCUA will consider in making its 
determination or what information it would be helpful for them to 
submit. The current regulations address only subpoenas directed at the 
production of written information or records and not testimony or other 
statements from NCUA personnel such as affidavits or declarations. In 
addition, current regulations provide no information about when a 
request should be submitted, the time period for review, potential 
fees, or, if a request is granted, the restrictions that may be placed 
on the disclosure of records or the appearance of an NCUA employee as a 
witness. Finally, the fact that the current regulations are set out in 
two places is confusing.
    The proposed rule addresses the aforementioned gaps in the current 
regulations. It is written in a question and answer format to promote 
clarity and uses simple terms. Briefly summarized, the proposed rule: 
prohibits disclosure of nonpublic records or testimony by NCUA 
employees unless there is compliance with the rule; lets the public 
know what information to submit and what factors the NCUA will 
consider; and identifies filing times, fees, and potential restrictions 
on disclosures or testimony. The proposed charges for witnesses are the 
same as those provided by the federal courts and the fees related to 
production of records are the same as those charged under FOIA.
    A few simple definitions clarify that the proposed rule applies to 
a broad range of cases, not only matters before a court, and, also, 
applies to former as well as current NCUA employees. Former employees 
remain prohibited from testifying about specific matters for which they 
had responsibility during their active employment, unless permitted to 
testify as provided in the proposed rule. They would not, however, be 
barred from appearing on general matters or otherwise employing their 
expertise as, for example, expert witnesses.
    The proposed rule solves some problems that have arisen in the 
past. It should eliminate or reduce eleventh hour requests. Also, by 
centralizing the service of subpoenas and the determination of the 
NCUA's response, it should eliminate attempts to serve subpoenas or 
present requests for disclosure of nonpublic records to field staff and 
regional offices. The procedures and criteria will ensure a more 
efficient use of NCUA resources, minimize the possibility of involving 
the NCUA in issues unrelated to its responsibilities, promote 
uniformity in responding to such requests and subpoenas and maintain 
the impartiality of NCUA between private litigants. The proposed rule 
will serve NCUA's interest in protecting sensitive, confidential and 
privileged information and records generated by its supervisory and 
regulatory work.
    The proposed rule is essentially procedural, not substantive. It 
does not create a right to obtain records or the testimony of an NCUA 
employee nor does it create any additional right or privilege not 
already available to NCUA to deny such a request. The NCUA is not 
making any waiver of its sovereign immunity. Failure to comply with the 
rule, however, is a basis for denying a request.
    The NCUA is interested in receiving comments on the application of 
the proposed regulation to former as well as current employees, 
including its application to proceedings to which NCUA is a party, the 
exception from coverage for expert testimony by former employees, and 
any other factors that commenters believe the NCUA should consider in 
addition to those set out in Sec. 792.46 in reaching a final 
determination.

Legal Authority

    Numerous government agencies and departments, well over 60, have 
promulgated regulations governing the circumstances and manner in which 
an employee may respond to demands for testimony or production of 
documents. These regulations, issued under the authority of 5 U.S.C. 
301, the so-called housekeeping statute, are separate from FOIA 
regulations. In addition, the NCUA has authority under the Federal 
Credit Union Act (Act) to issue ``rules as it sees fit for the 
transaction of its business,'' 12 U.S.C. 1752a(d), and regulations as 
are ``necessary and appropriate to carry out the provisions'' of the 
Act, 12 U.S.C. 1789(a)(10).
    Section 301 of Title 5 expressly states that it does not provide a 
basis for withholding information or limiting the availability of 
records but authorizes the head of an executive agency to issue 
``regulations for the government of his department, the conduct of its 
employees, the distribution and performance of its business and the 
custody, use, and preservation of its records, papers, and property.'' 
Id. These regulations are called Touhy regulations after a landmark 
Supreme Court case, United States ex rel. Touhy v. Ragen, 340 U.S. 462 
(1951).
    The Touhy case was the first in a long line of cases that have 
upheld regulations restricting the right of private litigants to 
require testimony or production of documents from employees of federal 
agencies. In Touhy, the Supreme Court held that a Department of Justice 
(DOJ) official, acting on order of the Attorney General,

[[Page 19943]]

could not be held in contempt for declining to produce records in 
response to a subpoena. The Court reasoned that the variety of 
information contained in the files of any government agency and the 
possibilities of harm from unrestricted disclosure in court necessitate 
centralizing determinations as to whether to obey or challenge a 
subpoena. The Court stated that it was appropriate for the Attorney 
General to prescribe regulations for the preservation of DOJ records.
    Federal circuit and district courts have consistently held that a 
person seeking testimony or records from an agency must comply with the 
agency's Touhy regulation prior to seeking judicial enforcement of a 
subpoena. Colonial Savings and Loan Assoc. v. St. Paul Fire and Marine 
Ins. Co., 89 F.R.D. 481, 484 (D. Kan. 1980); Marcoux v. Mid-States 
Livestock, 66 F.R.D. 573, 575 n. 1 (W.D. Mo. 1975); Davis v. Braswell 
Motor Freight Lines, Inc., 363 F.2d 600 (5th Cir. 1966).
    Generally, courts cannot compel an agency employee who is the 
subject of a subpoena to testify or produce records in violation of the 
agency's Touhy regulation. Touhy, 340 U.S. at 467-70; United States 
Steel Corp. v. Mattingly, 663 F.2d 68 (10th Cir. 1980). Courts have 
also upheld regulations that limit federal employees testifying about 
purely factual information. Southeastern Pa. Transp. Auth. v. General 
Motors Corp., 103 F.R.D. 12 (E.D. Pa. 1984); Kline v. Martin, 345 F. 
Supp. 31 (E.D. Va. 1972). Consequently, a limited or conditional 
authorization to testify or produce records does not waive an 
employee's immunity from contempt or compulsion with regard to 
releasing records or testifying on unauthorized matters. Swett v. 
Schenk, 792 F.2d 1447, 1451-52 (9th Cir. 1986).
    Agencies may also restrict the testimony of former employees. 
Fowkes v. Dravo Corporation, 5 F.R.D. 51 (E.D. Pa. 1945). In the Fowkes 
case, a former employee and a current employee of the Treasury 
Department refused to testify or produce documents pursuant to 
subpoenas because they were instructed not to do so by the Deputy 
Commissioner of Internal Revenue. Because the employees obtained the 
information while in their official positions, disclosure could not be 
permitted unless in accordance with a Treasury regulation and a 
Treasury Department circular. The court upheld the Treasury 
Department's refusal to allow the testimony, at least until the 
procedures in the Department circular were followed. The court based 
its decision on the nature of the information. Thus, it is generally 
understood that, as long as a former employee acquired the information 
in an official capacity, persons seeking his or her testimony are still 
required to comply with an agency regulation limiting disclosure or 
testimony. As noted previously, the proposed rule will not bar former 
NCUA employees from serving as expert witnesses, however, former NCUA 
employees are prohibited from testifying about specific matters for 
which they had responsibility during their employment unless permission 
is granted pursuant to the regulation.
    With respect to the cost of processing and responding to requests 
for records and testimony, an agency may prescribe regulations 
establishing the charge for a service or thing of value provided by the 
agency. 31 U.S.C. 9701.

Regulatory Procedures

Regulatory Flexibility Act

    The Regulatory Flexibility Act requires the NCUA to prepare an 
analysis to describe any significant economic impact any proposed 
regulation may have on a substantial number of small credit unions, 
meaning those under $1 million in assets.
The NCUA Board has determined and certifies that the proposed rule, if 
adopted, will not have a significant economic impact on a substantial 
number of small credit unions. The reasons for this determination are 
that the copying and witness fees to be charged to persons and entities 
submitting requests under the regulation are not large and will not 
create a financial burden. The proposed rule will not create any 
significant demand for legal, accounting, or consulting expenditures. 
Accordingly, the NCUA Board has determined that a Regulatory 
Flexibility Analysis is not required.

Paperwork Reduction Act

    The NCUA has determined that the requirement that a person must 
submit a written request containing the information identified in 
Sec. 792.43 in order to obtain nonpublic records or the testimony of an 
NCUA employee constitutes a collection of information under the 
Paperwork Reduction Act. NCUA is submitting a copy of this proposed 
rule to the Office of Management and Budget (OMB) for its review.
    It is NCUA's view that the time spent in preparing a written 
request will ensure the fair and efficient processing of such requests. 
In addition, the information and analysis is related to the need for 
the evidence and, given that the written request arises in the context 
of a legal proceeding, this is work that will most likely already have 
been undertaken by the requester as part of the preparation of the 
case.
    The NCUA estimates that it will take an average of two or three 
hours to prepare the written request. The NCUA currently receives two 
or three requests per month so the total annual reporting burden is 
estimated to be no more than 72 hours.
    The Paperwork Reduction Act of 1995 and OMB regulations require 
that the public be provided an opportunity to comment on information 
collection requirements, including an agency's estimate of the burden 
of the collection of information. The NCUA Board invites comment on: 
(1) whether the collection of the information is necessary for the 
proper performance of the functions of the NCUA; (2) the accuracy of 
the NCUA's estimate of the burden of the collection of information; (3) 
ways to enhance the quality, utility, and clarity of the information to 
be collected; and (4) ways to minimize the burden of collection of 
information. Send comments to: OMB Reports Management Branch, New 
Executive Office Building, Room 10202, Washington, DC 20503. Attn: 
Alexander T. Hunt. Please send NCUA a copy of any comments you submit 
to OMB. NCUA will publish a notice in the Federal Register once OMB 
action is taken on the submitted request.
    OMB is required to make a decision concerning the collection of 
information contained in this proposed rule between 30 and 60 days 
after publication of the proposed rule in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. This does not affect 
the deadline for the public to comment to the NCUA Board on the 
proposed rule.

Executive Order 12612

    The NCUA Board has determined that this proposed rule will not have 
a substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among various levels of government.

List of Subjects in 12 CFR Part 792

    Administrative practice and procedure, Credit unions, Confidential 
business information, Freedom of Information Act, Government employees, 
Reporting and recordkeeping requirements, Subpoenas.


[[Page 19944]]


    By the National Credit Union Administration Board on April 16, 
1997.
Becky Baker,
Secretary of the Board.

    For the reasons set forth in the preamble, NCUA proposes to amend 
12 CFR part 792 as set forth below:

PART 792--[AMENDED]

    1. The authority citation for part 792 is revised to read as 
follows:

    Authority: 5 U.S.C. 301, 552, 552a, 552b; 12 U.S.C. 1752a(d), 
1766, 1789, 1795f; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 
235; E.O. 12958, 60 FR 19825, 3 CFR, 1995 Comp., p. 333.

    2. Amend Sec. 792.4 to remove paragraph (b)(3) and revise paragraph 
(a) to read as follows:


Sec. 792.4  Release of exempt records.

    (a) Prohibition against disclosure. Except as provided in paragraph 
(b) of this section and subpart C of this part, no officer, employee, 
or agent of NCUA or of any federally-insured credit union shall 
disclose or permit the disclosure of any exempt records of the Agency 
to any person other than those NCUA or credit union officers, 
employees, or agents properly entitled to such information for the 
performance of their official duties.
* * * * *
    3. Revise subpart C of part 792 to read as follows:

Subpart C--Production of Nonpublic Records and Testimony of NCUA 
Employees in Legal Proceedings

Sec.
792.40  What does this subpart prohibit?
792.41  When does this subpart apply?
792.42  How do I request nonpublic records or testimony?
792.43  What must my written request contain?
792.44  When should I make a request?
792.45  Where do I send my request?
792.46  What will the NCUA do with my request?
792.47  If my request is granted, what fees apply?
792.48  If my request is granted, what restrictions may apply?
792.49  Definitions.

Subpart C--Production of Nonpublic Records and Testimony of NCUA 
Employees in Legal Proceedings


Sec. 792.40  What does this subpart prohibit?

    This subpart prohibits the release of nonpublic records or the 
appearance of an NCUA employee to testify in legal proceedings except 
as provided in this subpart. Any person possessing nonpublic records 
may release them or permit their disclosure only as provided in this 
subpart.
    (a) Duty of NCUA employees. (1) If an NCUA employee is served with 
a subpoena requiring him or her to appear as a witness or produce 
records, the employee must promptly notify the Office of General 
Counsel. The General Counsel has the authority to instruct NCUA 
employees to refuse appearing as a witness or to withhold nonpublic 
records. The General Counsel may let an NCUA employee provide 
testimony, including expert or opinion testimony, if the General 
Counsel determines that the need for the testimony clearly outweighs 
contrary considerations.
    (2) If a court or other appropriate authority orders or demands 
expert or opinion testimony or testimony beyond authorized subjects 
contrary to the General Counsel's instructions, an NCUA employee must 
immediately notify the General Counsel of the order and respectfully 
decline to comply. An NCUA employee must decline to answer questions on 
the grounds that this subpart forbids such disclosure and should 
produce a copy of this subpart, request an opportunity to consult with 
the Office of General Counsel, and explain that providing such 
testimony without approval may expose him or her to disciplinary or 
other adverse action.
    (b) Duty of persons who are not NCUA employees. (1) If you are not 
an NCUA employee but have custody of nonpublic records and are served 
with a subpoena requiring you to appear as a witness or produce 
records, you must promptly notify the NCUA about the subpoena. Also, 
you must notify the issuing court or authority and the person or entity 
for whom the subpoena was issued of the contents of this subpart. 
Notice to the NCUA is made by sending a copy of the subpoena to the 
General Counsel of the NCUA, Office of General Counsel, 1775 Duke 
Street, Alexandria, Virginia 22314-3428. After receiving notice, the 
NCUA may advise the issuing court or authority and the person or entity 
for whom the subpoena was issued that this subpart applies and, in 
addition, may intervene, attempt to have the subpoena quashed or 
withdrawn, or register appropriate objections.
    (2) After notifying the Office of General Counsel, you should 
respond to a subpoena by appearing at the time and place stated in the 
subpoena. Unless authorized by the General Counsel, you should decline 
to produce any records or give any testimony, basing your refusal on 
this subpart. If the issuing court or authority orders the disclosure 
of records or orders you to testify, you should continue to decline to 
produce records or testify and should advise the Office of General 
Counsel.
    (c) Penalties. Anyone who discloses nonpublic records or gives 
testimony related to those records, except as expressly authorized by 
the NCUA or as ordered by a federal court after NCUA has had the 
opportunity to be heard, may face the penalties provided in 18 U.S.C. 
641 and other applicable laws. Also, former NCUA employees, in addition 
to the prohibition contained in this subpart, are subject to the 
restrictions and penalties of 18 U.S.C. 207.


Sec. 792.41  When does this subpart apply?

    This subpart applies if you want to obtain nonpublic records or 
testimony of a NCUA employee for legal proceedings. It doesn't apply to 
records that the NCUA is required to release under the Freedom of 
Information Act (FOIA), records which the NCUA releases to federal or 
state investigatory agencies under Sec. 792.4(b)(2), or the Privacy 
Act, 5 U.S.C. 552a.


Sec. 792.42  How do I request nonpublic records or testimony?

    (a) To request nonpublic records or the testimony of an NCUA 
employee, you must submit a written request to the General Counsel of 
the NCUA. If you serve a subpoena on the NCUA or an NCUA employee 
before submitting a written request and receiving a final 
determination, the NCUA will oppose the subpoena on the grounds that 
you failed to follow the requirements of this subpart. You may serve a 
subpoena as long as it is accompanied by a written request that 
complies with this subpart.
    (b) To request nonpublic records that are part of the records of 
the Office of the Inspector General or the testimony of an NCUA 
employee on matters within the knowledge of the NCUA employee as a 
result of his or her employment with the Office of the Inspector 
General, you must submit a written request to the Office of the 
Inspector General. Your request will be handled in accordance with the 
provisions of this subpart except that the Inspector General will be 
responsible for those determinations that would otherwise be made by 
the General Counsel.


Sec. 792.43  What must my written request contain?

    Your written request for records or testimony must include:
    (a) The caption of the legal proceeding, docket number, and name of 
the court or other authority involved.
    (b) A copy of the complaint or equivalent document setting forth 
the

[[Page 19945]]

assertions in the case and any other pleading or document necessary to 
show relevance.
    (c) A list of categories of records sought, a detailed description 
of how the information sought is relevant to the issues in the legal 
proceeding, and a specific description of the substance of the 
testimony or records sought.
    (d) A statement as to how the need for the information outweighs 
the need to maintain the confidentiality of the information and 
outweighs the burden on the NCUA to produce the records or provide 
testimony.
    (e) A statement indicating that the information sought is not 
available from another source, such as a credit union's own books and 
records, other persons or entities, or the testimony of someone other 
than an NCUA employee, for example, retained experts.
    (f) A description of all prior decisions, orders, or pending 
motions in the case that bear upon the relevance of the records or 
testimony you want.
    (g) The name, address, and telephone number of counsel to each 
party in the case.
    (h) An estimate of the amount of time you anticipate that you and 
other parties will need with each NCUA employee for interviews, 
depositions, or testifying.


Sec. 792.44  When should I make a request?

    You should submit your request at least 45 days before the date 
that you need the records or testimony. If you want to have your 
request processed in less time, you must explain why you couldn't 
submit the request earlier and why you need expedited processing. If 
you are requesting the testimony of an NCUA employee, the NCUA expects 
you to anticipate your need for the testimony in sufficient time to 
obtain it by a deposition. The General Counsel may deny a request for 
testimony at a legal proceeding unless you explain why you could not 
use deposition testimony. The General Counsel will determine the 
location of a deposition taking into consideration the NCUA's interest 
in minimizing the disruption for an NCUA employee's work schedule and 
the costs and convenience of other persons attending the deposition.


Sec. 792.45  Where do I send my request?

    You must send your request or subpoena for records or testimony to 
the attention of the General Counsel for the NCUA, Office of General 
Counsel, 1775 Duke Street, Alexandria, Virginia 22314-3428. You must 
send your request or subpoena for records or testimony from the Office 
of the Inspector General to the attention of the NCUA Inspector 
General, 1775 Duke Street, Alexandria, Virginia 22314-3428.


Sec. 792.46  What will the NCUA do with my request?

    (a) Factors the NCUA will consider. The NCUA may consider various 
factors in reviewing a request for nonpublic records or testimony of 
NCUA employees, including:
    (1) Whether disclosure would assist or hinder the NCUA in 
performing its statutory duties or use NCUA resources unreasonably, 
including whether responding to the request will interfere with NCUA 
employees' ability to do their work.
    (2) Whether disclosure is necessary to prevent the perpetration of 
a fraud or other injustice in the matter or if you can get the records 
or testimony you want from sources other than the NCUA.
    (3) Whether the request is unduly burdensome.
    (4) Whether disclosure would violate a statute, executive order, or 
regulation, for example, the Privacy Act, 5 U.S.C. 552a.
    (5) Whether disclosure would reveal confidential, sensitive or 
privileged information, trade secrets or similar, confidential 
commercial or financial information, or would otherwise be 
inappropriate for release and, if so, whether a confidentiality 
agreement or protective order as provided in Sec. 792.48(a) can 
adequately limit the disclosure.
    (6) Whether the disclosure would interfere with law enforcement 
proceedings, compromise constitutional rights, or hamper NCUA research 
or investigatory activities.
    (7) Whether the disclosure could result in NCUA appearing to favor 
one litigant over another.
    (8) Any other factors the NCUA determines to be relevant to the 
interests of the NCUA.
    (b) Review of your request. The NCUA will process your request in 
the order it is received. The NCUA will try to respond to your request 
within 45 days, but this may vary depending on the scope of your 
request.
    (c) Final determination. The General Counsel makes the final 
determination on requests for nonpublic records or NCUA employee 
testimony. All final determinations are in the sole discretion of the 
General Counsel. The General Counsel will notify you and the court or 
other authority of the final determination of your request. In 
considering your request, the General Counsel may contact you to inform 
you of the requirements of this subpart, ask that the request or 
subpoena be modified or withdrawn, or may try to resolve the request or 
subpoena informally without issuing a final determination. You may seek 
judicial review of the final determination under the Administrative 
Procedure Act, 5 U.S.C. 702.


Sec. 792.47  If my request is granted, what fees apply?

    (a) Generally. You must pay any fees associated with complying with 
your request, including copying fees for records and witness fees for 
testimony. The General Counsel may condition the production of records 
or appearance for testimony upon advance payment of a reasonable 
estimate of the fees.
    (b) Fees for records. You must pay all fees for searching, 
reviewing and duplicating records produced in response to your request. 
The fees will be the same as those charged by the NCUA under its 
Freedom of Information Act regulations, Sec. 792.5.
    (c) Witness fees. You must pay the fees, expenses, and allowances 
prescribed by the court's rules for attendance by a witness. If no such 
fees are prescribed, the local federal district court rule concerning 
witness fees, for the federal district court closest to where the 
witness appears, will apply. For testimony by current NCUA employees, 
you must pay witness fees, allowances, and expenses to the General 
Counsel by check made payable to the ``National Credit Union 
Administration'' within 30 days from receipt of NCUA's billing 
statement. For the testimony of a former NCUA employee, you must pay 
witness fees, allowances, and expenses directly to the former employee, 
in accordance with 28 U.S.C. 1821 or other applicable statutes.
    (d) Certification of records. The NCUA may authenticate or certify 
records to facilitate their use as evidence. If you require 
authenticated records, you must request certified copies at least 45 
days before the date they will be needed. The request should be sent to 
the General Counsel. You will be charged a certification fee of $5.00 
per document.
    (e) Waiver of fees. A waiver or reduction of any fees in connection 
with the testimony, production, or certification or authentication of 
records may be granted in the discretion of the General Counsel. 
Waivers will not be granted routinely. If you request a waiver, your 
request for records or testimony must state the reasons why a waiver 
should be granted.

[[Page 19946]]

Sec. 792.48  If my request is granted, what restrictions apply?

    (a) Records. The General Counsel may impose conditions or 
restrictions on the release of nonpublic records, including a 
requirement that you obtain a protective order or execute a 
confidentiality agreement with the other parties in the legal 
proceeding that limits access to and any further disclosure of the 
nonpublic records. The terms of a confidentiality agreement or 
protective order must be acceptable to the General Counsel. In cases 
where protective orders or confidentiality agreements have already been 
executed, the NCUA may condition the release of nonpublic records on an 
amendment to the existing protective order or confidentiality 
agreement.
    (b) Testimony. The General Counsel may impose conditions or 
restrictions on the testimony of NCUA employees, including, for 
example, limiting the areas of testimony or requiring you and the other 
parties to the legal proceeding to agree that the transcript of the 
testimony will be kept under seal or will only be used or made 
available in the particular legal proceeding for which you requested 
the testimony. The General Counsel may also require you to provide a 
copy of the transcript of the testimony to the NCUA at your expense.


Sec. 792.49  Definitions.

    Legal proceedings means any matter before any federal, state or 
foreign administrative or judicial authority, including courts, 
agencies, commissions, boards or other tribunals, involving such 
proceedings as lawsuits, licensing matters, hearings, trials, 
discovery, investigations, mediation or arbitration. When the NCUA is a 
party to a legal proceeding, it will be subject to the applicable rules 
of civil procedure governing production of documents and witnesses, 
however, this subpart will still apply to the testimony of former NCUA 
employees.
    NCUA employee means current and former officials, members of the 
Board, officers, directors, employees and agents of the National Credit 
Union Administration, including contract employees and consultants and 
their employees. This definition does not include persons who are no 
longer employed by the NCUA and are retained or hired as expert 
witnesses or agree to testify about general matters, matters available 
to the public, or matters with which they had no specific involvement 
or responsibility during their employment.
    Nonpublic records means any NCUA records that are exempt from 
disclosure under Sec. 792.3, the NCUA regulations implementing the 
provisions of the Freedom of Information Act. For example, this means 
records created in connection with NCUA's examination and supervision 
of insured credit unions, including examination reports, internal 
memoranda, and correspondence, and, also, records created in connection 
with NCUA's enforcement and investigatory responsibilities.
    Subpoena means any order, subpoena for records or other tangible 
things or for testimony, summons, notice or legal process issued in a 
legal proceeding.
    Testimony means any written or oral statements made by an 
individual in connection with a legal proceeding including personal 
appearances in court or at depositions, interviews in person or by 
telephone, responses to written interrogatories or other written 
statements such as reports, declarations, affidavits, or certifications 
or any response involving more than the delivery of records.

[FR Doc. 97-10373 Filed 4-23-97; 8:45 am]
BILLING CODE 7535-01-P