[Federal Register Volume 64, Number 44 (Monday, March 8, 1999)]
[Proposed Rules]
[Pages 10954-10959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5550]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 64, No. 44 / Monday, March 8, 1999 / Proposed 
Rules  

[[Page 10954]]


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FARM CREDIT ADMINISTRATION

12 CFR Part 602

RIN 3052-AB84


Releasing Information

AGENCY: Farm Credit Administration (FCA).

ACTION: Proposed rule.

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SUMMARY: This proposed rule would amend FCA regulations concerning the 
release of information under the Freedom of Information Act (FOIA) to:
     Reflect revised fees and make it easier for the public to 
obtain FCA records;
     Revise the procedures for requests for testimony by FCA 
employees on official matters and for the production of FCA documents 
in litigation when FCA is not a named party; and
     Add procedures for requesting records in public rulemaking 
files.
    The proposed regulation is more concise and easier to understand.

DATES: Please submit comments on or before April 7, 1999.

ADDRESSES: You may send us your comments via E-mail to ``reg-
[email protected]'' through the Pending Regulations section of our 
interactive website at ``www.fca.gov.'' You may also mail or deliver 
your comments to Patricia W. DiMuzio, Director, Regulation and Policy 
Division, Office of Policy and Analysis, Farm Credit Administration, 
1501 Farm Credit Drive, McLean, Virginia 22102-5090, or send them by 
facsimile transmission to FAX number (703) 734-5784. You may review 
copies of all comments we receive in the Office of Policy and Analysis, 
Farm Credit Administration.

FOR FURTHER INFORMATION CONTACT:

John Hays, Policy Analyst, Office of Policy and Analysis, Farm Credit 
Administration, 1501 Farm Credit Drive, McLean, VA 22102-5090, (703) 
883-4498, TDD (703) 883-4444,
    or
Jane Virga, Senior Attorney, Office of General Counsel, Farm Credit 
Administration, 1501 Farm Credit Drive, McLean, VA 22102-5090, (703) 
883-4020, TDD (703) 883-4444.

SUPPLEMENTARY INFORMATION: In addition to streamlining the regulation, 
we propose to add the following new provisions:
    1. Sec. 602.2(b) expresses the FCA policy that permits a Farm 
Credit System institution to disclose its report of examination to its 
officers, directors, and agents, such as attorneys and accountants, if 
they agree to keep the report confidential.
    2. Sec. 602.2(d) outlines when FCA may release documents to 
governmental entities without waiving any exemption.
    3. Sec. 602.3 includes definitions of common FOIA terms. They are 
recited as an aid to the public and are not intended to affect any 
individual's rights under the FOIA.
    4. Sec. 602.4(a) provides addresses for forwarding requests by 
mail, facsimile, and E-mail.
    5. Sec. 602.4(f) provides that the Office of Congressional and 
Public Affairs will make available copies of public documents.
    6. Sec. 602.5(c) explains when FCA will refer a document request to 
another Federal agency.
    7. Sec. 602.8(a) provides that the time for an appeal begins to run 
from the date of the FCA letter granting or denying the request and not 
from the date the requester receives it. This change ensures clarity in 
determining the appeal period. It also provides addresses for 
forwarding appeals by mail, facsimile, and E-mail.
    8. Sec. 602.12(b) establishes that FCA will automatically waive 
FOIA fees when assessable fees are less than $15.00. Current 
Sec. 602.268(b) does not establish a threshold level. This change 
ensures uniform treatment of minimal FOIA fees.
    9. Sec. 602.20(c) adds that FCA counsel may represent FCA's 
interests at a deposition.
    10. Sec. 602.22 (currently Sec. 602.287) makes the fee structure 
for obtaining privileged documents in litigation when the FCA is not a 
party the same as those assessed under the FOIA.
    11. Sec. 602.25 addresses public rulemaking files. It explains how 
to obtain documents in public rulemaking files and what FCA will charge 
for reproduction costs.
    12. General. We have changed the language throughout the regulation 
to reflect that: (1) FCA examines entities other than Farm Credit 
System institutions; (2) privileges apply to all FCA reports of 
examination; and (3) computer records and other nonpaper records are 
FCA records.
    Finally, we propose to delete the following sections from the 
current regulation:
    1. Sec. 602.205, which distinguished between the consent required 
for the disclosure of regular and special FCA reports of examination. 
Proposed Sec. 602.2 eliminates this distinction.
    2. Sec. 602.215, which addresses the confidentiality of borrower 
and applicant data and prohibits FCA employees from releasing it. This 
section addresses internal FCA procedures and is redundant with 
portions of Sec. 618.8320 of this chapter. Despite this deletion, we 
will continue to prohibit FCA employees from disclosing confidential 
information.
    3. Sec. 602.250(a)(8) discusses exemption (b)(8) of the FOIA and 
certain reports filed with FCA. The portion that we propose to delete 
provides that, notwithstanding the application of exemption (b)(8) of 
the FOIA, reports to shareholders and items in reports of condition and 
performance filed with FCA that are essentially the same as those 
disclosed to shareholders are available to the public on request for a 
reasonable fee. We deleted this discussion because it merely 
illustrates how FCA typically applies, and makes an exception to, 
exemption (b)(8) of the FOIA. Despite this deletion, we will continue 
to release such information upon request in appropriate circumstances.

List of Subjects in 12 CFR Part 602

    Administrative practice and procedure, Courts, Freedom of 
information, Government employees.

    For the reasons stated in the preamble, part 602 of chapter VI, 
title 12 of the Code of Federal Regulations is proposed to be revised 
to read as follows:

PART 602--RELEASING INFORMATION

Subpart A--Information and Records Generally

Sec.
602.1  Purpose and scope.
602.2  Disclosing reports of examination.

[[Page 10955]]

Subpart B--Procedures for the Disclosure of Records Under the FOIA

602.3  Definitions.
602.4  Requirements for making a request.
602.5  FCA response to requests for records.
602.6  FOIA exemptions.
602.7  Confidential business information.
602.8  Appeals.
602.9  Current index.

Subpart C--FOIA Fees

602.10  Definitions.
602.11  Fees by type of requestor.
602.12  Fees.
602.13  Fee waiver.
602.14  Advance payments--notice.
602.15  Interest on unpaid fees.
602.16  Aggregating requests.

Subpart D--Testimony and Production of Documents in Legal Proceedings 
in Which FCA Is Not a Named Party

602.17 Policy.
602.18  Definitions.
602.19  Request for testimony or production of documents.
602.20  Testimony of FCA employees.
602.21  Production of FCA documents.
602.22  Fees.
602.23  Responses to demands served on FCA employees.
602.24  Responses to demands served on non-FCA employees or 
entities.

Subpart E--Release of Records in Public Rulemaking Files

602.25 General.

    Authority: Secs. 5.9, 5.17; 12 U.S.C. 2243, 2252; 5 U.S.C. 301, 
552; 52 FR 10012; E.O. 12600, 52 FR 23781, 3 CFR 1987, p. 235.

Subpart A--Information and Records Generally


Sec. 602.1  Purpose and scope.

    This part contains FCA's rules for disclosing FCA records or 
information; processing requests for records under the Freedom of 
Information Act (5 U.S.C. 552, as amended)(FOIA); FOIA fees; disclosing 
otherwise exempt information in litigation when FCA is not a party; and 
disclosing documents in public rulemaking files. Consult part 603 of 
this chapter to request records about yourself under the Privacy Act of 
1974, 5 U.S.C. 552a.


Sec. 602.2  Disclosing reports of examination.

    (a) Generally. Reports of examination are FCA property. They are 
prepared for the confidential use of FCA and the institution examined. 
FCA does not provide reports of examination to the public. Only the FCA 
Chairman or the Chairman's designee may consent to disclosing reports 
of examination of Farm Credit System institutions and other 
institutions subject to FCA examination.
    (b) By Farm Credit System institutions. An institution examined by 
FCA may disclose its report of examination to its officers, directors, 
and agents, such as its attorney or accountant, if they agree to keep 
the report confidential. In addition, banks may disclose their reports 
of examination to their affiliated associations, associations may 
disclose their reports to their supervisory bank, and service 
corporations may disclose their reports of examination to the 
institutions that own them. An institution may not disclose these 
institutions' reports of examination to any other person without FCA's 
written permission.
    (c) By FCA. Only the FCA Chairman or the Chairman's designee can 
give permission. You may send a written request to FCA's General 
Counsel that explains why we should give permission.
    (d) Disclosure to governmental entities. Without waiving any 
privilege, we will disclose reports of examination or portions of 
reports of examination to other Federal government entities:
    (1) In response to a Federal court order;
    (2) In response to a request of either House, a Committee or a 
Subcommittee of Congress; or
    (3) To authorized representatives of other Federal agencies when 
requested for confidential use in an official investigation. For any 
other use, the FCA Chairman must approve the disclosure.

Subpart B--Procedures for the Disclosure of Records Under the FOIA


Sec. 602.3  Definitions.

    (a) Appeal means a request under the FOIA asking for the reversal 
of a decision.
    (b) Business information means trade secrets or other commercial or 
financial information that is privileged or confidential.
    (c) Business submitter means any person or entity that provides 
business information to the government.
    (d) FOIA request means a written request for FCA records, made by 
any natural person or entity that either explicitly or implicitly 
invokes the FOIA or this part.
    (e) Record means all documentary materials, such as books, papers, 
maps, photographs, and machine readable materials, regardless of 
physical form or characteristics (e.g., electronic form or format) in 
FCA's possession and control at the time the FOIA request is made.


Sec. 602.4  Requirements for making a request.

    (a) How to make and address a request. Your request for records 
must be in writing and addressed to the FOIA Officer, Farm Credit 
Administration, as follows:
    (1) By mail to 1501 Farm Credit Drive, McLean, Virginia 22102-5090;
    (2) By facsimile to (703) 790-0052; or 1. By E-mail to 
``[email protected].''
    (b) Description of requested records. You must describe the 
requested records in enough detail to enable us to locate them with a 
reasonable effort. If the description is inadequate, we will ask you to 
provide additional information and the 20-day response period under 
Sec. 602.5(a) will not begin until we receive your reply.
    (c) Expedited processing. You may ask for expedited processing of 
your FOIA request by providing a statement, certified to be true, that 
you have a ``compelling need.''
    The FOIA Officer will notify you within 10 calendar days after 
receiving the request whether FCA has granted expedited processing. If 
so, we will process your request as soon as we can. For the purposes of 
this paragraph, ``compelling need'' means:
    (1) Your or someone's life or physical safety may be in danger if 
processing is not expedited; or
    (2) You urgently need to inform the public about actual or alleged 
Federal government activity as a representative of the news media.
    (d) Request for personal information. If you or your representative 
requests your personal information, FCA may require you to submit a 
notarized request, identify yourself under penalty of perjury, or 
provide other proof of your identity.
    (e) Fees. When making a request, you must specify the amount you 
are willing to pay. You may also want to state your identity and the 
purpose of your request so FCA can categorize your request for fee 
purposes.
    (f) Other requests. To ensure that the public has timely 
information about FCA activities, the Office of Congressional and 
Public Affairs will make available copies of public documents, such as 
FCA's annual report and media advisories.


Sec. 602.5  FCA response to requests for records.

    (a) Response time. The FOIA Officer will tell you within 20 
business days of receiving your request whether it was granted or 
denied. If your request is addressed incorrectly, the 20-day response 
period will not begin until the FOIA Officer actually receives your 
request (or would have received it with the exercise of due diligence 
by FCA.)
    (b) Extension of response time. In ``unusual circumstances,'' the 
FOIA

[[Page 10956]]

Officer may extend the 20-day response time for up to 10 more business 
days by telling you in writing why an extension is needed and the date 
a determination should be mailed. As used in this paragraph, ``unusual 
circumstances'' means the need to:
    (1) Search for and collect the requested records from field offices 
or other separate establishments;
    (2) Search for, collect, and review a voluminous amount of records 
identified in a single request;
    (3) Consult with another Federal agency having a substantial 
interest in the request; or
    (4) Consult with two or more FCA offices having a substantial 
interest in the request.
    (c) Referrals. If you request records in FCA's possession 
originated by another Federal agency, we will refer the request to the 
originating agency and inform you of the referral. If your request 
should have been addressed to another Federal agency, FCA will refer 
the request to that agency and so advise you.


Sec. 602.6  FOIA exemptions.

    The FOIA exempts from mandatory disclosure records in these 
categories:
    (a) Exemption 1. Records properly and currently classified in the 
interest of national defense or foreign policy, as specifically 
authorized under criteria established by an Executive order of the 
President;
    (b) Exemption 2. Records related solely to internal personnel rules 
and FCA practices, including matters that are for the guidance of FCA 
personnel;
    (c) Exemption 3. Records that are specifically exempted from 
disclosure by a statute that permits no discretion on the issue;
    (d) Exemption 4. Records containing trade secrets and commercial or 
financial information obtained from any person or organization that is 
privileged or confidential;
    (e) Exemption 5. Records containing inter-agency or intra-agency 
memorandums or letters that would not be available by law to a party 
(other than a Federal agency) in litigation with FCA;
    (f) Exemption 6. Personnel and similar files, the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (g) Exemption 7. Records or information compiled for law 
enforcement purposes, but only to the extent that the production of 
such law enforcement records or information:
    (1) Could reasonably be expected to interfere with enforcement 
proceedings;
    (2) Would deprive a person of a right to a fair trial or an 
impartial adjudication;
    (3) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (4) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, or foreign agency or 
authority or any private institution that furnished information on a 
confidential basis, and, in the case of a record or information 
compiled by a criminal law enforcement authority in the course of a 
criminal investigation or by a Federal agency conducting a lawful 
national security intelligence investigation, information furnished by 
a confidential source;
    (5) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (6) Could reasonably be expected to endanger the life or physical 
safety of any individual;
    (h) Exemption 8. Records of or related to examination, operation, 
reports of condition and performance, or reports of or related to Farm 
Credit System institutions or institutions that are regulated and/or 
examined by FCA that are prepared by, on behalf of, or for FCA's use; 
and
    (i) Exemption 9. Records containing geological and geophysical 
information and data (including maps) concerning wells.


Sec. 602.7  Confidential business information.

    (a) In general. FCA may disclose business information provided to 
FCA by a business submitter only under this section. This section will 
not apply if:
    (1) FCA determines that the business submitter has no valid basis 
to object to disclosure;
    (2) The information has been published lawfully or otherwise made 
available to the public; or
    (3) Law (other than 5 U.S.C. 552) requires disclosure of the 
information.
    (b) Notification. Upon receipt of a request for confidential 
business information, the FOIA Officer will promptly notify the 
requester and the business submitter in writing that the responsive 
records may be exempt from disclosure under 5 U.S.C. 552(b)(4). FCA 
will give the business submitter a reasonable time to object to the 
proposed disclosure of the responsive records and so inform the 
requester whenever:
    (1) The business submitter has in good faith designated the 
information as a trade secret or commercial or financial information 
that is privileged or confidential. FCA will provide such notice for 10 
years after receiving the information unless the business submitter 
justifies the need for a longer period; or
    (2) FCA believes that disclosing the information may result in 
commercial or financial injury to the business submitter.
    (c) Objection to release. A business submitter who objects to 
releasing the requested information should tell FCA in writing why the 
information is a trade secret or commercial or financial information 
that is privileged or confidential.
    (d) FCA response. (1) We will consider carefully a business 
submitter's objections. If we decide to disclose business information 
over the submitter's objection, the FOIA Officer in writing will 
explain to the submitter why we disagreed with the submitter's 
objection and describe the business information to be disclosed.
    (2) We will notify the requester and the submitter at the same time 
of the proposed disclosure date.
    (3) If a submitter sues to prevent release, we will promptly notify 
the requester and not disclose the business information until after the 
court's decision.
    (4) If a requester sues to compel disclosure, we will promptly 
notify the business submitter.


Sec. 602.8  Appeals.

    (a) How to appeal. You may appeal a total or partial denial of your 
FOIA request within 30 calendar days of the date of the denial letter. 
Your appeal must be in writing and addressed to the Director, Office of 
Resources Management (ORM), Farm Credit Administration, as follows:
    (1) By mail to 1501 Farm Credit Drive, McLean, Virginia 22102-5090;
    (2) By facsimile to (703) 893-2608; or
    (3) By E-mail to [email protected].
    (b) FCA action on appeal. The ORM Director will act upon an appeal 
within 20 business days of receiving the appeal and will inform you of 
the determination in writing. If your appeal is improperly addressed, 
the 20-day time period will not begin until the appeal is received or 
would have been received with the exercise of due diligence in the 
Office of the Director, ORM.
    (c) Unusual circumstances. In ``unusual circumstances,'' as defined 
in Sec. 602.5(b), the ORM Director may extend the 20-day response time 
by telling you in writing why an extension is needed and the date a 
determination

[[Page 10957]]

should be mailed. The total of all extensions, including any extension 
of the response time for the initial request, may not exceed 10 
business days.


Sec. 602.9  Current index.

    FCA will make available for public inspection and copying a current 
index as required by 5 U.S.C. 552(a)(2)(C). Publication of the index in 
the Federal Register is unnecessary and impractical because we rarely 
receive requests for indexed material. However, we will provide a copy 
of the index upon request at a cost not to exceed the actual 
duplication cost.

Subpart C--FOIA Fees


Sec. 602.10  Definitions.

    (a) Commercial use request means a request for information on 
behalf of an individual or entity seeking information for a use or 
purpose that furthers the commercial, trade, or profit interests of 
that individual or entity.
    (b) Direct costs means the costs FCA incurs in searching for and 
reproducing documents to respond to a FOIA request. For a commercial 
use request, it also means the costs we incur in reviewing documents to 
respond to the request. Direct costs include the salary of the 
employees performing work (the basic rate of pay for the employee plus 
16 percent of that rate to cover benefits) and the cost of operating 
reproduction equipment. They do not include overhead expenses.
    (c) Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of undergraduate or 
graduate higher education, an institution of professional education, or 
an institution of vocational education that operates a program of 
scholarly research.
    (d) Noncommercial scientific institution means an institution 
operated solely to conduct scientific research that is not intended to 
promote any particular product or industry and not for a commercial, 
trade, or profit basis.
    (e) Pages refers to paper copies sized 8\1/2\ x 11 inches or 11 x 
14 inches.
    (f) Representative of the news media means any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public. ``News'' means information that is 
about current events or that would be of current interest to the 
public.
    (g) Reproduce and reproduction means making a copy of a record to 
respond to a FOIA request by paper copy, microfilm, audiovisual 
materials, or machine readable documentation, magnetic tape, or disk.
    (h) Review means the process of examining documents located in 
response to a FOIA request to determine whether any portion should be 
withheld. It does not include the time spent resolving legal or policy 
issues.
    (i) Search means all time spent looking for material responsive to 
a FOIA request, including page-by-page or line-by-line identification 
of material within documents.


Sec. 602.11  Fees by type of requestor.

    Depending on your identity and the purpose of your request, the FCA 
may charge you the direct costs of searching for responsive records, 
reviewing the records, and reproducing them. If necessary, we will seek 
clarification before categorizing the request.
    (a) Educational institutions and noncommercial scientific 
institutions. FCA charges fees for reproduction costs only. The first 
100 pages are free. You must show that the request is authorized by an 
educational or noncommercial scientific institution and that the 
records are sought to further scholarly or scientific research and are 
not for a commercial use.
    (b) Representatives of the news media. FCA charges fees for 
reproduction costs only. The first 100 pages are free. You must be a 
representative of the news media, and the request must not be made for 
a commercial use. A request for records supporting news dissemination 
is not a request for a commercial use.
    (c) Commercial use. FCA charges the direct cost for search, review, 
and reproduction. Commercial use requesters are not entitled to free 
search time or free reproduction. You will be charged even if no 
records are disclosed.
    (d) All others. The first 2 hours of search time and the first 100 
pages of reproduction are free. Thereafter, FCA will charge you search 
and reproduction costs. You will be charged for a search even if no 
records are disclosed.


Sec. 602.12  Fees.

    (a) FCA may charge:
    (1) For manual searches for records and for review, the salary rate 
(i.e., basic pay plus 16 percent) of the employees.
    (2) For computer searches for records, the direct costs of computer 
search time including the cost of special supplies or materials.
    (3) For each page made by photocopy or similar process, fifteen 
cents per page and for other copy forms, the direct costs.
    (4) The direct costs of elective services, such as certifying 
records as true copies or sending records by special methods.
    (b) We will not charge fees when total assessed fees are less than 
$15.00.
    (c) You must pay by personal check, bank draft drawn on a United 
States bank, or postal money order made payable to the Treasury of the 
United States.
    (d) A request about yourself is treated under Privacy Act fee 
provisions.


Sec. 602.13  Fee waiver.

    FCA may waive or reduce fees if we determine that disclosure is in 
the public interest because it will advance public understanding of the 
government's operations or activities, and it is not primarily in your 
commercial interest.


Sec. 602.14  Advance payments--notice.

    (a) If fees will be more than $25.00 and you have not indicated in 
advance that you will pay estimated fees, FCA will notify you of the 
amount of estimated fees and ask that you agree to pay them. Except as 
noted in this section, we will begin processing the FOIA request upon 
receiving your agreement to pay.
    (b) If estimated fees exceed $250.00 and you have a history of 
promptly paying fees charged for information requests, we may process 
your request based on your agreement to pay the estimated fees.
    (c) If the estimated fees exceed $250.00 and you have no history of 
paying fees charged for information requests, FCA may require you to 
pay the estimated fees in advance.
    (d) If you have previously failed to pay fees for information 
requests or paid them late, you must pay any fees still owed, plus 
interest, and the estimated fees before we will process a new or a 
pending request.
    (e) If we require advance payment or your agreement in advance to 
pay fees, we will not consider the request to be received and will not 
process it until you meet the requirement.


Sec. 602.15  Interest on unpaid fees.

    If you have failed to pay fees on time, FCA may charge you interest 
starting on the 31st calendar day following the date we bill you. 
Interest will accrue at the rate prescribed in section 3717 of title 
31, United States Code, starting on the day the bill was sent.


Sec. 602.16  Aggregating requests.

    You may not file multiple requests at the same time solely to avoid 
paying fees. When FCA reasonably believes that you, or a group acting 
together, is attempting to break a request down into a series of 
requests to avoid fees, we will

[[Page 10958]]

aggregate the requests and charge accordingly. We will assume that 
multiple requests of this type made within a 30-day period have been 
made to avoid fees. Where requests are separated by a longer period, we 
will aggregate the requests only when we determine there is a basis for 
aggregation.

Subpart D--Testimony and Production of Documents in Legal 
Proceedings in Which FCA Is Not a Named Party


Sec. 602.17  Policy.

    (a) The rules in this subpart maintain the confidentiality of FCA's 
documents and information, conserve FCA employees' time for official 
duties, maintain FCA's impartiality in litigation, and authorize the 
FCA Chairman to determine when to permit testimony and to produce 
documents. This subpart does not affect access to documents under the 
FOIA or the Privacy Act. See subpart B of this part and part 603 of 
this chapter.
    (b) Generally, FCA will not voluntarily produce documents and FCA 
employees will not appear voluntarily as witnesses in any legal 
proceeding. However, in limited circumstances, the FCA Chairman may 
permit the production of documents or testimony when the Chairman 
determines it would be in the best interest of FCA or the public. The 
Chairman may delegate this authority. All privileged documents made 
available under this subpart remain FCA property. Any employee in 
possession of information or privileged documents may disclose them 
only as authorized by the Chairman.


Sec. 602.18  Definitions.

    (a) Court means any entity conducting a legal proceeding.
    (b) Demand means any order, subpoena, or other legal process for 
testimony or documents.
    (c) Direct costs means the costs FCA incurs in searching for, 
reviewing, and reproducing documents to respond to a request. Direct 
costs include the salary of employees performing work (the basic rate 
of pay for the employee plus 16 percent of that rate to cover benefits) 
and the cost of operating reproduction equipment.
    (d) Document means any record or other documentary materials, such 
as books, papers, maps, photographs, and machine readable materials, 
regardless of physical form or characteristics (e.g., electronic form 
or format) in FCA's possession and control at the time of the request.
    (e) Employee means any FCA employee or former employee, any FCA 
Board member or former Board member, any former Federal Farm Credit 
Board member, any present or former FCA-appointed receiver or 
conservator, or any agent or independent contractor presently or 
formerly acting on behalf of FCA even if the appointment or contract 
has terminated.
    (f) FCA Counsel means the General Counsel, a Department of Justice 
attorney, or counsel authorized by FCA to act on behalf of FCA or an 
employee.
    (g) General Counsel means the General Counsel of FCA or the General 
Counsel's designee.
    (h) Legal proceeding means any administrative, civil, or criminal 
proceeding, including a discovery proceeding, before a court when FCA 
is not a named party or when FCA has not instituted the legal 
proceeding.


Sec. 602.19  Request for testimony or production of documents.

    How to make and address a request. Your request for an FCA 
employee's testimony about official matters or the production of FCA 
documents must be in writing and addressed to the FCA General Counsel, 
1501 Farm Credit Drive, McLean, Virginia 22102-5090.
    (a) Your request must contain the following:
    (1) Title of the case;
    (2) Forum;
    (3) Your interest in the case;
    (4) Summary of the litigation issues;
    (5) Reasons for the request;
    (6) Why the confidential information is important; and
    (7) An explanation of why the desired testimony or document is not 
reasonably available from another source. If testimony is requested, 
you must also state how you intend to use the testimony, provide a 
summary of the testimony requested, and explain why a document could 
not be used instead of testimony.
    (b) The General Counsel may ask you to consider limiting your 
request to make it less burdensome or to provide information necessary 
to determine if providing documents or testimony would be in the public 
interest.


Sec. 602.20  Testimony of FCA employees.

    (a) An FCA employee may testify only as permitted by the FCA 
Chairman's written authorization. Generally, an employee may testify 
only by deposition or written interrogatory. An employee may give only 
factual testimony and may not give opinion testimony.
    (b) If, in response to your request, the Chairman determines that 
an employee may testify, you must serve the employee with a subpoena 
under applicable Federal or State rules of procedure and simultaneously 
send a copy of the subpoena by registered mail to the General Counsel.
    (c) Normally, depositions will be taken at the employee's office, 
at a time convenient to the employee and the office. FCA counsel may 
represent FCA's interests at the deposition.
    (d) If you request the deposition, you must provide the General 
Counsel a copy of the deposition transcript at no charge.


Sec. 602.21  Production of FCA documents.

    (a) An FCA employee may produce FCA documents only as permitted by 
the FCA Chairman.
    (b) Before FCA will release any documents, the requesting party 
must obtain an acceptable protective order from the court before which 
the action is pending that will preserve the confidentiality of the 
documents to be released.
    (c) Upon request, we may provide certified or authenticated copies 
of FCA documents.


Sec. 602.22  Fees.

    (a) For documents released under this subpart, FCA will charge:
    (1) The direct costs of searching for responsive records, including 
the use of a computer, reviewing the records, and reproducing them. We 
will charge for the direct cost of other services and materials not 
identified in this section.
    (2) Fifteen cents per copy for each page made by photocopy or 
similar process.
    (3) The direct costs for each certification or authentication of 
documents.
    (b) You must pay by personal check, bank draft drawn on a United 
States bank, or postal money order made payable to FCA. We will waive 
fees of $15.00 or less. We will forward the documents after we receive 
your payment.


Sec. 602.23  Responses to demands served on FCA employees.

    (a) An FCA employee served with a demand or a subpoena in a legal 
proceeding must immediately notify the General Counsel of such service, 
of the desired testimony or documents, and of all relevant facts.
    (b) When the FCA Chairman does not permit testimony or production 
of documents, FCA counsel will provide the regulations in this subpart 
to the party or court issuing the demand and explain that the employee 
may not testify or produce documents without the Chairman's prior 
approval.

[[Page 10959]]

    (c) If the court rules that the employee must comply with the 
demand regardless of the Chairman's instructions not to do so, the 
employee must respectfully refuse to comply.
    (d) FCA's determination under this subpart to comply or not to 
comply with any demand will not be a waiver or an assertion of 
privilege, or an objection based on relevance, technical deficiency, or 
any other ground. We may oppose any demand on any legal ground.


Sec. 602.24  Responses to demands served on non-FCA employees or 
entities.

    If you are not an FCA employee as defined in Sec. 602.18(e) and are 
served with a demand or a subpoena in a legal proceeding directing you 
to produce or testify about an FCA report of examination, other 
document generated or adopted by FCA, or any related document, you must 
object and immediately notify the General Counsel of such service, the 
testimony and documents described in the demand, and all relevant 
facts. You must also object to the production of the documents on the 
basis that the documents are FCA's property and cannot be released 
without FCA's consent. You should inform the requester that the 
production of documents or testimony must follow the procedures in this 
part.

Subpart E--Release of Records in Public Rulemaking Files


Sec. 602.25  General.

    FCA compiles a public rulemaking file for each regulation. You may 
obtain documents in the public rulemaking file by sending a written 
request to the Director, Regulation and Policy Division, Office of 
Policy and Analysis, Farm Credit Administration, 1501 Farm Credit 
Drive, McLean, Virginia 22102-5090. We will charge fifteen cents per 
copy for each page made by photocopy or similar process. If the 
requested records are maintained in an electronic format, we will 
charge for the actual reproduction costs. We will waive fees of $15.00 
or less.

    Dated: March 2, 1999.
Vivian L. Portis,
Secretary, Farm Credit Administration Board.
[FR Doc. 99-5550 Filed 3-5-99; 8:45 am]
BILLING CODE 6705-01-P