[Federal Register Volume 64, Number 147 (Monday, August 2, 1999)]
[Rules and Regulations]
[Pages 41770-41774]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-19584]


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FARM CREDIT ADMINISTRATION

12 CFR Part 602

RIN 3052-AB84


Releasing Information

AGENCY: Farm Credit Administration (FCA).

ACTION: Final rule.

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SUMMARY: This final rule amends FCA regulations on the release of 
information under the Freedom of Information Act (FOIA) to:
     Reflect new fees and make it easier for the public to get 
FCA records;
     Revise the procedures for requests for testimony by FCA 
employees on official matters and for producing FCA documents in 
litigation when FCA is not a named party; and
     Add procedures for getting records in public rulemaking 
files.
    We designed this regulation to be concise and easy to understand.

EFFECTIVE DATE: This regulation will become effective 30 days after 
publication in the Federal Register during which either one or both 
houses of Congress are in session. We will publish a notice of the 
effective date in the Federal Register.

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: We received no comments from the public on 
our proposed rule published March 8, 1999 (64 FR 10954). The revisions 
to part 602 are now final. We have added two tables to the final 
regulation to make it easier for readers to view the types and amounts 
of fees we charge requesters.

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 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.

Subpart B--Availability of Records of the Farm Credit Administration 
602.3 Definitions.

602.4  How to make 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 FOIA index.

Subpart C--FOIA Fees 602.10 Definitions.

602.11  Fees by type of requester.
602.12  Fees.
602.13  Fee waiver.
602.14  Advance payments--notice.
602.15  Interest on unpaid fees.
602.16  Combining 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 our 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 
getting documents in public rulemaking files. Part 603 of this chapter 
tells you how to get records about yourself under the Privacy Act of 
1974, 5 U.S.C. 552a.


Sec. 602.2  Disclosing reports of examination.

    (a) Disclosure by FCA. Reports of examination are FCA property. We 
prepare them for our confidential use and the use of the institution 
examined. We do not give reports of examination to the public. Except 
as provided in this section, only the Chairman or the

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Chairman's designee may consent to disclosing reports of examination of 
Farm Credit System institutions and other institutions subject to our 
examination. You may send a written request to our General Counsel that 
explains why we should give permission.
    (b) Disclosure by Farm Credit System institutions. An institution 
that we have examined 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 our 
written permission.
    (c) Disclosure to governmental entities. Without waiving any 
privilege, we will disclose 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 or a Committee or 
Subcommittee of Congress; or
    (3) When requested for confidential use in an official 
investigation by authorized representatives of other Federal agencies.

Subpart B--Availability of Records of the Farm Credit 
Administration


Sec. 602.3  Definitions.

    Appeal means a request under the FOIA asking for the reversal of a 
decision.
    Business information means trade secrets or other commercial or 
financial information that is privileged or confidential.
    Business submitter means any person or entity that gives business 
information to the Government.
    FOIA request means a written request for FCA records, made by any 
person or entity that either directly or indirectly invokes the FOIA or 
this part.
    Record means all documentary materials, such as books, papers, 
maps, photographs, and machine-readable materials, regardless of 
physical form or characteristics (for example, electronic format) in 
our possession and control when we receive your FOIA request.


Sec. 602.4  How to make 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. You may send it:
    (1) By mail to 1501 Farm Credit Drive, McLean, Virginia 22102-5090;
    (2) By facsimile to (703) 790-0052; or
    (3) By E-mail to ``[email protected].''
    (b) Description of requested records. You must describe the 
requested records in enough detail to let us find them with a 
reasonable effort. If the description is inadequate, we will ask you to 
provide more information and the 20-day response period under 
Sec. 602.5(a) will not begin until we receive your reply.
    (c) Faster response. You may ask for a faster response to your FOIA 
request by giving us a statement, certified to be true, that you have a 
``compelling need.'' The FOIA Officer will tell you within 10 calendar 
days after receiving the request whether we will respond to it faster. 
If so, we will respond to your request as soon as we can. A compelling 
need means:
    (1) Someone's life or physical safety may be in danger if we do not 
respond to the request faster; or
    (2) You urgently need to tell the public about Federal government 
activity as a representative of the news media.
    (d) Request for personal information. If you or your representative 
requests your personal information, we may require you to give us a 
notarized request, identify yourself under penalty of perjury, or 
provide other proof of your identity.
    (e) Fees. When making a request, you must tell us the most you are 
willing to pay. Our charges are in the fee tables in Secs. 602.11 and 
602.12. You may also want to tell us the purpose of your request so we 
can classify your request for fee purposes.
    (f) Other requests. To ensure the public has timely information 
about our activities, the Office of Congressional and Public Affairs 
will make available copies of public documents, such as the FCA annual 
report and media advisories.


Sec. 602.5  FCA response to requests for records.

    (a) Response time. Within 20 business days of receiving your 
request, the FOIA Officer will tell you whether we have granted or 
denied it. If you send your request to the wrong address, the 20-day 
response time will not begin until the FOIA Officer receives your 
request.
    (b) Extension of response time. In ``unusual circumstances,'' the 
FOIA Officer may extend the 20-day response time for up to 10 more 
business days by telling you in writing why we need more time and the 
date we will mail you our response. As used in this subpart, ``unusual 
circumstances'' means our need to:
    (1) Search for and get the requested records from field offices or 
other locations;
    (2) Search for, get, and review many 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 ask for records we have that another Federal 
agency originated, we will refer the request to the originating agency 
and tell you about the referral. If you should have sent your request 
to another Federal agency, we will refer the request to that agency and 
so advise you.


Sec. 602.6  FOIA exemptions.

    The FOIA allows agencies to withhold documents in certain 
categories. For instance, we do not have to give you documents that 
relate to our examination of institutions or that would violate the 
personal privacy of an individual. If we do not give you a document 
because the FOIA does not require us to, we will tell you which FOIA 
exemption applies to our decision.


Sec. 602.7  Confidential business information.

    (a) FCA disclosure. FCA may disclose business information from a 
business submitter only under this section. This section will not apply 
if:
    (1) We decide the business submitter has no valid basis to object 
to disclosure;
    (2) The information has been published lawfully or made available 
to the public; or
    (3) Law (other than the FOIA) requires disclosure of the 
information.
    (b) Notice by FCA. When we receive a request for confidential 
business information, the FOIA Officer will promptly tell the requester 
and the business submitter in writing that the responsive records may 
be free from disclosure under the FOIA. We will give the business 
submitter a reasonable time to object to the proposed disclosure of the 
responsive records and tell the requester whenever:
    (1) The business submitter has in good faith labeled the 
information a trade secret or commercial or financial information that 
is privileged or confidential. We will provide such notice for 10 years 
after receiving the information unless the business submitter justifies 
the need for a longer period; or

[[Page 41772]]

    (2) We believe 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 our 
releasing the requested information should tell us 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 will explain to the 
submitter in writing why we disagreed with the submitter's objection 
and describe the business information to be disclosed.
    (2) We will tell the requester and the submitter the proposed 
disclosure date at the same time.
    (3) If a submitter sues to prevent release, we will promptly tell 
the requester and will not disclose the business information until 
after the court's decision.
    (4) If a requester sues to compel disclosure, we will promptly tell 
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. You may send 
it:
    (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. Within 20 business days of receiving your 
appeal, the ORM Director will tell you, in writing, whether we have 
granted or denied it. If you send your appeal to the wrong address, the 
20-day response time will not begin until the ORM Director receives 
your appeal.
    (c) Unusual circumstances. In unusual circumstances, the ORM 
Director may extend the 20-day response time by telling you in writing 
why we need more time and the date we will mail you our response. All 
extensions, including any extension of the response time for the first 
request, may not total more than 10 business days.


Sec. 602.9  Current FOIA index.

    FCA will make a current index available for public inspection and 
copying, as required by the FOIA. We will give you an index for the 
cost of copying it. Because we rarely receive requests for an index, we 
have not published one in the Federal Register.

Subpart C--FOIA Fees


Sec. 602.10  Definitions.

    Commercial use request means an information request by an 
individual or entity seeking information for a use or purpose that 
furthers the commercial, trade, or profit interests of that individual 
or entity.
    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 pro rated cost of the 
salary of the employee performing the work (based on the basic rate of 
pay plus 16 percent to cover benefits) and the cost of operating 
reproduction equipment. They do not include overhead expenses.
    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 runs a program of scholarly 
research.
    Noncommercial scientific institution means a nonprofit institution 
that conducts scientific research that is not intended to promote any 
particular product or industry.
    Pages mean 8-1/2  x  11 inch or 11  x  14 inch paper copies.
    Representative of the news media means any person actively 
gathering news for an entity that publishes or broadcasts news to the 
public. News means information about current events or of current 
interest to the public.
    Reproduce (or reproduction) means copying a record.
    Review means looking at documents found in response to a FOIA 
request to decide whether any portion should be withheld. It does not 
include the time spent resolving legal or policy issues.
    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 requester.

    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 classifying the request.
    (a) Educational institutions and noncommercial scientific 
institutions. We charge fees for reproduction costs only. The first 100 
pages are free. You must show that the request is sanctioned by an 
educational or noncommercial scientific institution and that you seek 
the records for scholarly or scientific research, not for a commercial 
use.
    (b) Representatives of the news media. We charge 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 distribution is 
not a request for a commercial use.
    (c) Commercial use. We charge the direct cost for search, review, 
and reproduction. Commercial use requesters are not entitled to free 
search time or free reproduction. We will charge you even if we do not 
disclose any records.
    (d) All others. The first 2 hours of search time and the first 100 
pages of reproduction are free. After that, we will charge you for 
search and reproduction costs. We will charge you for a search even if 
we do not disclose any records.
    (e) Fee table. The fee information in paragraphs (a) through (d) of 
this section is presented in the table to this paragraph. You may apply 
for a waiver if your request is not mostly in your commercial interest 
and the disclosure is in the public interest. See Sec. 602.13.

                                                    Fee Table
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                                                       Charges for
         Type of requester         ---------------------------------------------------        Reproduction
                                            Search time              Review time
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 Educational..............  No Charge.................  No charge............  First 100 pages free, $
Noncommercial scientific users                                                          0.15 a page after that.
News media
Commercial Users \1\..............  All direct costs..........  All direct costs.....  $0.15 a page.

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All others* ......................  First 2 hours free, all     No charge............  First 100 pages free,
                                     direct costs after that.                           $0.15 a page after that.
 
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* You are responsible for fees even if we do not disclose any records.

Sec. 602.12  Fees.

    (a) FCA may charge:
    (1) For manual searches for records and for review, the pro rated 
cost of the salary of the employee doing the work.
    (2) For computer searches for records, the direct costs of computer 
search time and supply or material costs.
    (3) For each page made by photocopy or similar method, fifteen 
cents a page, and for other forms of copying, 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) We treat a request about yourself under Privacy Act fee rules.
    (e) The information in paragraphs (a) and (b) of this section is 
presented in the table to this paragraph. Direct costs means the costs 
FCA incurs in searching for, reviewing, and reproducing documents to 
respond to a request. Direct costs include pro rated salary and 
reproduction costs. We will not charge fees when they total less than $ 
15.00.

                                                Fee Amounts Table
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                        Type of fee                                             Amount of fee
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Manual Search and Review...................................  Pro rated Salary Costs.
Computer Search............................................  Direct Costs.
Photocopy..................................................  $0.15 a page.
Other Reproduction Costs...................................  Direct Costs.
Elective Services..........................................  Direct Costs.
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Sec. 602.13  Fee waiver.

    We may waive or reduce fees if disclosure is not mostly in your 
commercial interest but, instead, is in the public interest because it 
will advance public understanding of the Federal government's 
operations or activities.


Sec. 602.14  Advance payments--notice.

    (a) If fees will be more than $25.00 and you have not told us in 
advance that you will pay estimated fees, we will tell you the 
estimated amount and ask that you agree to pay it. Except as noted in 
this section, we will begin processing the FOIA request when we receive 
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 respond 
to your request based on your agreement to pay.
    (c) If estimated fees exceed $250.00 and you have no history of 
paying fees, we may require you to pay 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 calculated under Sec. 602.15, and the estimated fees before we 
will respond to a new or a pending request.
    (e) If we require advance payment or an advance agreement to pay, 
we will not consider your request to be received and will not respond 
to it until you meet the requirement.


Sec. 602.15  Interest on unpaid fees.

    If you fail to pay fees on time, FCA may charge you interest 
starting on the 31st calendar day following the date we bill you. We 
will charge you interest at the rate allowed by law (31 U.S.C. 3717) on 
the billing date.


Sec. 602.16  Combining requests.

    You may not avoid paying fees by filing multiple requests at the 
same time. When FCA reasonably believes that you, alone or with others, 
are breaking down a request into a series of requests to avoid fees, we 
will combine the requests and charge accordingly. We will assume that 
multiple requests within a 30-day period have been made to avoid fees.

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 preserve the confidentiality of FCA's 
documents and information, conserve employees' time for official 
duties, uphold fairness in litigation, and help the Chairman decide 
when to allow 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, we will not produce documents voluntarily and 
employees will not appear as witnesses voluntarily in any legal 
proceeding. However, in limited circumstances, the Chairman may allow 
the production of documents or testimony when the Chairman decides it 
would be in the best interest of FCA or the public. All privileged 
documents produced under this subpart remain our property. Any employee 
having information or privileged documents may disclose them only as 
allowed by the Chairman.


Sec. 602.18  Definitions.

    Court means any entity conducting a legal proceeding.
    Demand means any order, subpoena, or other legal process for 
testimony or documents.
    Direct costs means FCA's costs to search for, review, and reproduce 
documents to respond to a request. Direct costs include the pro rated 
cost of the salary of the employee performing the work (based on the 
basic rate of pay plus 16 percent to cover benefits) and the cost of 
operating reproduction equipment.
    Document means any record or other documentary materials, such as 
books,

[[Page 41774]]

papers, maps, photographs, and machine-readable materials, regardless 
of physical form or characteristics (for example, electronic format) in 
our possession and control when we receive the request.
    Employee means any present or former FCA employee, any present or 
former FCA Board member, any former Federal Farm Credit Board member, 
any present or former FCA-appointed receiver or conservator, and any 
present or former agent or contractor.
    FCA Counsel means the General Counsel, a Department of Justice 
attorney, or counsel authorized by FCA to act for the FCA or an 
employee.
    General Counsel means the FCA's General Counsel or designee.
    Legal proceeding means any administrative, civil, or criminal 
proceeding, including a discovery proceeding, before a court when FCA 
is not a named party and has not instituted the legal proceeding.


Sec. 602.19  Request for testimony or production of documents.

    (a) How to make and address a request. Your request for an 
employee's testimony about official matters or the production of 
documents must be in writing and addressed to the General Counsel, 1501 
Farm Credit Drive, McLean, Virginia 22102-5090.
    (b) 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 testimony or document you want is not 
reasonably available from another source. If you want testimony, you 
must also state how you intend to use the testimony, provide a subject 
matter summary of the requested testimony, and explain why a document 
could not be used instead.
    (c) The General Counsel may ask you to limit your request to make 
it less burdensome or to give us information to help us decide if 
providing documents or testimony is in the public interest.


Sec. 602.20  Testimony of FCA employees.

    (a) An employee may testify only as the Chairman approves in 
writing. 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 decides that an 
employee may testify, you must serve the employee with a subpoena under 
applicable Federal or State rules of procedure and at the same time 
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 FCA. FCA counsel may 
represent FCA's interests at the deposition.
    (d) If you request the deposition, you must give 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 documents only as the Chairman 
allows.
    (b) Before we will release any documents, the requesting party must 
get 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) On request, we may provide certified or authenticated copies of 
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 
also will charge for the direct costs of any other services and 
materials that we provide at your request.
    (2) Fifteen cents a 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 send the documents after we receive 
your payment.


Sec. 602.23  Responses to demands served on FCA employees.

    (a) An employee served with a demand or a subpoena in a legal 
proceeding must immediately tell the General Counsel of such service, 
the testimony or documents described in the demand, and all relevant 
facts.
    (b) When the Chairman does not allow 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.
    (c) If the court rules 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 decision under this subpart to comply or not to comply 
with any demand is not a waiver, 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 employee 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 created or adopted 
by FCA, or any related document, you must object and immediately tell 
the General Counsel of such service, the testimony or documents 
described in the demand, and all relevant facts. You also must object 
to the production of any documents on the basis that they are FCA's 
property and cannot be released without FCA's consent. You should tell 
the requester 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 has a public rulemaking file for each regulation. You may get 
copies of 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 a copy 
for each page. We will waive fees of $15.00 or less.

    Dated: July 21, 1999.
Vivian L. Portis,
Secretary,
Farm Credit Administration Board.
[FR Doc. 99-19584 Filed 7-30-99; 8:45 am]
BILLING CODE 6705-01-P