[Federal Register Volume 62, Number 209 (Wednesday, October 29, 1997)]
[Rules and Regulations]
[Pages 56051-56056]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-28585]


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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: Final rule.

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SUMMARY: The NCUA amends its rules regarding subpoenas seeking 
nonpublic records or the testimony of NCUA employees. The 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 rule. The rule also amends the current rule 
regarding release of NCUA records that are exempt from disclosure under 
the Freedom of

[[Page 56052]]

Information Act to conform with the procedures provided in this 
proposed rule.

DATES: Effective October 29, 1997.

ADDRESSES: National Credit Union Administration, 1775 Duke Street, 
Alexandria, Virginia 22314-3428.

FOR FURTHER INFORMATION CONTACT: Sheila Albin, 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 
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 using the parties' own 
records.

Proposed Rule

    On April 16, 1997, the NCUA Board issued a proposed rule to revise 
Part 792.62 FR 19941 (April 24, 1997). The proposed rule was presented 
in a question and answer format to promote clarity and uses simple 
terms. It continued the basic prohibition against disclosure of 
nonpublic records or testimony by NCUA employees without obtaining 
permission. The proposed rule also set out for the public what 
information to submit and what factors the NCUA will consider; and 
identified filing times, fees, and potential restrictions on 
disclosures or testimony. The rule identified the proposed charges for 
witnesses as 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.

Comments

    In the Supplementary Information section of the proposed rule, the 
NCUA stated its interest 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 believed the NCUA should consider in 
addition to those set out in Sec. 792.46 in reaching a final 
determination. Four comment letters were received: two from national 
trade associations, one from a state league and one from a federal 
credit union.
    Comments from the two national trade associations indicated their 
general support for more efficient procedures and recognized the need 
to protect the confidentiality of examination-related records. Both 
trade associations commented on NCUA's authority to prevent former 
employees from testifying. One trade association stated that it 
questioned NCUA's authority to prevent the testimony of former 
employees unless it was clear that nonpublic records such as 
examination records would be divulged.
    We first want to note that the rule is substantially similar to 
regulations issued by our sister financial regulatory agencies that 
also restrict disclosure of confidential information by former 
employees or any person in possession of such information. Federal 
Deposit Insurance Corporation, 12 C.F.R. 309.7; Office of Thrift 
Supervision, 12 C.F.R. 510.5; The Federal Reserve System, 12 C.F.R. 
261.14. The focus of the rule is on requiring that NCUA receive notice 
of proposed testimony by a former employee. The purpose is not to 
restrict former employees but to protect the release of confidential 
records and information that may be in their possession. Even when 
former employees are not in possession of nonpublic records, they may 
still have substantial knowledge and information that they recall 
regarding matters that remain confidential. For this reason, the NCUA 
wants an opportunity, in advance of testimony being given, to consult 
with former employees and any party wishing to use their testimony in 
order to protect the confidentiality of that information by prohibiting 
or limiting such testimony as appropriate.
    Our view is that the definition of employee makes clear that the 
NCUA's intent is to protect confidential information. 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 rule. They would not, however, be barred 
from appearing on general matters or otherwise employing their 
expertise as, for example, expert witnesses. Finally, we want to 
highlight the fact that the final rule, as in the proposed rule, 
contains a prohibition against release of nonpublic records by any 
person who may have custody of them.
    Both trade associations also commented on Sec. 792.46 that sets out 
the factors NCUA will consider in reviewing a request. One commented 
that the factors were too subjective. The other commented that a better 
rationale would be to rely on a legal basis such as a statute or 
evidentiary privilege and suggested using the standard used by the 
Federal Reserve Board which is whether the need for the information 
outweighs the need for confidentiality and whether disclosure is 
consistent with Board policy and supervisory and regulatory 
responsibilities. 12 CFR 261.13(c). We believe that the factors we have 
listed include several examples of established statutory and 
evidentiary privileges and that, although phrased differently, the 
factors in the final rule set the same basic standard used by the 
Federal Reserve Board but in simpler, more specific language. We do not 
think the factors are subjective but are necessarily and appropriately 
flexible. For example, the factor of whether a request is burdensome 
must be considered on a case-by-case.
    Both trade associations commented on the information that a written 
request must include. One commented that it made difficult for a 
litigant to know the relevance of what is sought and offered as an 
alternative that a requester only be required to assert affirmatively 
that the documents are relevant. We disagree. The regulation is 
designed to protect nonpublic records and the testimony of employees, 
which by their nature, will likely contain sensitve and confidential 
information. Without a basis for concluding that the records or 
testimony are relevant in a particular matter, the NCUA should not 
consider releasing them. In addition, merely establishing that records 
or testimony are relevant is not sufficient. In order to be able to 
consider the factors set out in Sec. 792.46,

[[Page 56053]]

the NCUA must have information about the nature of the proceedings. The 
NCUA must know something about the proceedings in order to consider 
whether the litigant can obtain the information or testimony from other 
sources. For example, if litigants want nonpublic records or the 
testimony of NCUA employees merely to establish the general financial 
condition of a credit union, we think they should seek financial 
records directly from the credit union and hire their own expert 
witness to testify about them. In response to the comment that it may 
be difficult for a requester to specify what records it wants because 
he or she may not know what is available, we think a requester can 
phrase such a request in terms of the facts or issues that are relevant 
in much the same way that the Freedom of Information Act requests or 
discovery requests in civil litigation are prepared. Thus, if a 
requester cannot identify specific records, the description of the 
facts or issues involved should be sufficient to permit the NCUA to 
identify responsive records.
    With regard to application of the rule to proceedings to which NCUA 
is a party, there was one comment that NCUA should have to abide by the 
same rules of evidence as other litigants. Another comment was to the 
effect that the statement that NCUA will be subject to applicable rules 
of civil procedure when it is a party to a proceeding should be more 
conspiculously placed. This statement appears in the definition of 
``legal proceedings'' and, we believe, states clearly that NCUA will be 
subject to the applicable rules of procedure when it is a party. As a 
matter of drafting, we believe that it is appropriately placed in the 
definition section. That same definition also states clearly that, the 
rule will still apply to the testimony of former employees even when 
the NCUA is a party to a proceeding. Unless the NCUA receives notice as 
provided under the rule, it may not otherwise receive notice of a 
former employee's testimony even though NCUA is a party to a 
proceeding. This is because a former employee may otherwise be 
contacted for testimony in the form of declarations, affidavits, 
statements or interviews, which could involve the former employee's 
revealing confidential information without any prior notice to NCUA of 
the nature of the testimony. For that reason, the rule will still apply 
to former employees when NCUA is a party to a proceeding. Obviously, 
where NCUA is a party to a proceeding, it will be in a position to 
receive notice of any requests for records or the testimony of current 
employees.
    Comments from the state league and one federal credit union 
generally were supportive of the proposed regulation but indicated some 
concern that the regulation should not be used to deny access to 
records that should be made available. The NCUA reiterates its position 
stated when it issued the proposed regulation. The final 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.

Final Rule

    The final rule is the same as the proposed rule. It 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 final rule will serve NCUA's interest in protecting 
sensitive, confidential and privileged information and records 
generated by its supervisory and regulatory work.
    The NCUA reiterates its position that, in issuing this regulation, 
it is not making any waiver of its sovereign immunity. For reference, 
the NCUA notes that, in addition to the foregoing, a discussion of the 
legal authority for issuance of this regulation is set out in the 
Supplemental Information accompanying the publication of the proposed 
regulation. 62 FR 19941 (April 24, 1997).

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 person 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 submitted a copy of the proposed rule to the Office of 
Management and Budget (OMB) for its review. OMB received no comments on 
the proposed rule. Under the Paperwork Reduction Act of 1995, no 
persons are required to respond to a collection of information unless 
it displays a valid OMB control number. OMB has assigned 31330146 as 
the control number that will be displayed in the table at 12 CFR Part 
795.

Executive Order 12612

    Executive Order 12612 requires NCUA to consider the effect of its 
actions on state interests. This final rule is essentially of a 
procedural nature only governing release of NCUA's own nonpublic 
records and the appearance of NCUA employees in legal proceedings. The 
NCUA has determined that the final rule does not constitute a 
significant regulatory action for purposes of the Executive Order.

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA) (Pub. L. 104-121) provides generally for congressional review 
of agency rules. The reporting requirement is triggered when a final 
rule is issued. The rule was submitted to OMB for determination of 
whether this final rule constitutes a major rule as defined under the 
statute. A major rule is one that OMB finds has resulted in or is 
likely to result in: (1) An annual effect on the economy of $100 
million or more; (2) a major increase in costs or prices for consumers, 
individual, industries, federal, state, or local government agencies, 
or geographic regions; or (3) significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of the United States based enterprises to compete with 
foreign-based enterprises in domestic and export markets. OMB has 
determined that this is not a major rule.

[[Page 56054]]

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 requirement, Subpoenas.

    By the National Credit Union Administration Board on October 22, 
1997.
Hattie Ulan,
Acting 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 an NCUA employee for legal proceedings. It doesn't apply 
to the release of records under the Freedom of Information Act (FOIA), 
5 U.S.C. 552, or the Privacy Act, 5 U.S.C. 552a, or the release of 
records to federal or state investigatory agencies under 
Sec. 792.4(b)(2).


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

[[Page 56055]]

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 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

[[Page 56056]]

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.


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. 97-28585 Filed 10-28-97; 8:45 am]
BILLING CODE 7535-01-P