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

NATIONAL CREDIT UNION ADMINISTRATION

12 CFR Part 792

Production of Nonpublic Records and Testimony of NCUA Employees

in Legal Proceedings

AGENCY: National Credit Union Administration (NCUA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: The NCUA proposes to amend its rules regarding subpoenas

seeking nonpublic records or the testimony of NCUA employees. The

proposed rule provides procedures, requirements and information on how

the NCUA will handle these matters and expressly prohibits any

disclosure or testimony except as provided by the proposed rule. The

effect of the rule will be, among other benefits, to insure an

efficient use of NCUA resources, promote uniformity in decisions,

protect confidential information, and provide guidance to parties. The

proposed rule will also amend the current rule regarding release of

NCUA records that are exempt from disclosure under the Freedom of

Information Act to conform with the procedures provided in this

proposed rule.

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

ADDRESSES: Comments should be directed to Becky Baker, Secretary of the

Board. Mail or hand-deliver comments to: National Credit Union

Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428. Fax

comments to (703) 518-6319. E-mail comments to [email protected].

Please sends comments by one method only.

FOR FURTHER INFORMATION CONTACT: Sheila Albin, Acting Associate General

Counsel, or Allan Meltzer, Associate General Counsel, (703) 518-6540.

SUPPLEMENTARY INFORMATION:

Background

The NCUA receives numerous subpoenas and requests for NCUA

employees to provide evidence in litigation. Typically, these subpoenas

are for NCUA records that are not available to the public under the

[[Page 19942]]

Freedom of Information Act (FOIA). Also, we receive numerous subpoenas

and requests for NCUA employees to appear as witnesses in litigation in

conjunction with a request for nonpublic records or to provide

testimony.

In recent years, the number of requests has averaged about two or

three a month. Often, these subpoenas and requests relate to litigation

involving federally-insured credit unions where there is some issue for

which one or both of the parties want to use nonpublic records, such as

NCUA examination reports, as evidence in the case. In addition, the

parties want to have an NCUA employee, often an examiner, testify to

establish the authenticity of the records or explain the information

contained in the records. If we provide these records and an examiner

appears as a witness, this will mean a significant disruption in the

examiner's work schedule. In many cases, parties want to use the

examiner as an expert witness on matters such as the financial

condition of the credit union or other issues involving opinions. Our

experience has been that, in many cases, the parties can deal with

these issues through the testimony of other witnesses, including hiring

their own independent, expert witness, and use the parties' own

records.

The current regulatory provisions pertinent to these matters appear

at two places in our regulations: regulations on subpoenas and those on

FOIA. Our regulation relating to subpoenas is set out at 12 CFR 792.40-

792.42. It states: where a subpoena is to be served; advises persons

who receive a subpoena requesting nonpublic records to contact the

Office of General Counsel; and prohibits production of records in

response to a subpoena except as authorized by the Office of General

Counsel. These regulations contain a cross-reference to our FOIA

regulations that are set out at 12 CFR 792.1-792.7. The FOIA

regulations contain a section dealing with the release of documents

that are exempt from disclosure under FOIA. 12 CFR 792.4. Briefly

summarized, this section provides that the NCUA may disclose records

exempt under FOIA based on a written request where there is ``good

cause.'' In addition, the section provides that the NCUA will impose

conditions as necessary to protect the confidentiality of the records.

Current regulations fail to inform persons submitting a subpoena

about the factors that the NCUA will consider in making its

determination or what information it would be helpful for them to

submit. The current regulations address only subpoenas directed at the

production of written information or records and not testimony or other

statements from NCUA personnel such as affidavits or declarations. In

addition, current regulations provide no information about when a

request should be submitted, the time period for review, potential

fees, or, if a request is granted, the restrictions that may be placed

on the disclosure of records or the appearance of an NCUA employee as a

witness. Finally, the fact that the current regulations are set out in

two places is confusing.

The proposed rule addresses the aforementioned gaps in the current

regulations. It is written in a question and answer format to promote

clarity and uses simple terms. Briefly summarized, the proposed rule:

prohibits disclosure of nonpublic records or testimony by NCUA

employees unless there is compliance with the rule; lets the public

know what information to submit and what factors the NCUA will

consider; and identifies filing times, fees, and potential restrictions

on disclosures or testimony. The proposed charges for witnesses are the

same as those provided by the federal courts and the fees related to

production of records are the same as those charged under FOIA.

A few simple definitions clarify that the proposed rule applies to

a broad range of cases, not only matters before a court, and, also,

applies to former as well as current NCUA employees. Former employees

remain prohibited from testifying about specific matters for which they

had responsibility during their active employment, unless permitted to

testify as provided in the proposed rule. They would not, however, be

barred from appearing on general matters or otherwise employing their

expertise as, for example, expert witnesses.

The proposed rule solves some problems that have arisen in the

past. It should eliminate or reduce eleventh hour requests. Also, by

centralizing the service of subpoenas and the determination of the

NCUA's response, it should eliminate attempts to serve subpoenas or

present requests for disclosure of nonpublic records to field staff and

regional offices. The procedures and criteria will ensure a more

efficient use of NCUA resources, minimize the possibility of involving

the NCUA in issues unrelated to its responsibilities, promote

uniformity in responding to such requests and subpoenas and maintain

the impartiality of NCUA between private litigants. The proposed rule

will serve NCUA's interest in protecting sensitive, confidential and

privileged information and records generated by its supervisory and

regulatory work.

The proposed rule is essentially procedural, not substantive. It

does not create a right to obtain records or the testimony of an NCUA

employee nor does it create any additional right or privilege not

already available to NCUA to deny such a request. The NCUA is not

making any waiver of its sovereign immunity. Failure to comply with the

rule, however, is a basis for denying a request.

The NCUA is interested in receiving comments on the application of

the proposed regulation to former as well as current employees,

including its application to proceedings to which NCUA is a party, the

exception from coverage for expert testimony by former employees, and

any other factors that commenters believe the NCUA should consider in

addition to those set out in Sec. 792.46 in reaching a final

determination.

Legal Authority

Numerous government agencies and departments, well over 60, have

promulgated regulations governing the circumstances and manner in which

an employee may respond to demands for testimony or production of

documents. These regulations, issued under the authority of 5 U.S.C.

301, the so-called housekeeping statute, are separate from FOIA

regulations. In addition, the NCUA has authority under the Federal

Credit Union Act (Act) to issue ``rules as it sees fit for the

transaction of its business,'' 12 U.S.C. 1752a(d), and regulations as

are ``necessary and appropriate to carry out the provisions'' of the

Act, 12 U.S.C. 1789(a)(10).

Section 301 of Title 5 expressly states that it does not provide a

basis for withholding information or limiting the availability of

records but authorizes the head of an executive agency to issue

``regulations for the government of his department, the conduct of its

employees, the distribution and performance of its business and the

custody, use, and preservation of its records, papers, and property.''

Id. These regulations are called Touhy regulations after a landmark

Supreme Court case, United States ex rel. Touhy v. Ragen, 340 U.S. 462

(1951).

The Touhy case was the first in a long line of cases that have

upheld regulations restricting the right of private litigants to

require testimony or production of documents from employees of federal

agencies. In Touhy, the Supreme Court held that a Department of Justice

(DOJ) official, acting on order of the Attorney General,

[[Page 19943]]

could not be held in contempt for declining to produce records in

response to a subpoena. The Court reasoned that the variety of

information contained in the files of any government agency and the

possibilities of harm from unrestricted disclosure in court necessitate

centralizing determinations as to whether to obey or challenge a

subpoena. The Court stated that it was appropriate for the Attorney

General to prescribe regulations for the preservation of DOJ records.

Federal circuit and district courts have consistently held that a

person seeking testimony or records from an agency must comply with the

agency's Touhy regulation prior to seeking judicial enforcement of a

subpoena. Colonial Savings and Loan Assoc. v. St. Paul Fire and Marine

Ins. Co., 89 F.R.D. 481, 484 (D. Kan. 1980); Marcoux v. Mid-States

Livestock, 66 F.R.D. 573, 575 n. 1 (W.D. Mo. 1975); Davis v. Braswell

Motor Freight Lines, Inc., 363 F.2d 600 (5th Cir. 1966).

Generally, courts cannot compel an agency employee who is the

subject of a subpoena to testify or produce records in violation of the

agency's Touhy regulation. Touhy, 340 U.S. at 467-70; United States

Steel Corp. v. Mattingly, 663 F.2d 68 (10th Cir. 1980). Courts have

also upheld regulations that limit federal employees testifying about

purely factual information. Southeastern Pa. Transp. Auth. v. General

Motors Corp., 103 F.R.D. 12 (E.D. Pa. 1984); Kline v. Martin, 345 F.

Supp. 31 (E.D. Va. 1972). Consequently, a limited or conditional

authorization to testify or produce records does not waive an

employee's immunity from contempt or compulsion with regard to

releasing records or testifying on unauthorized matters. Swett v.

Schenk, 792 F.2d 1447, 1451-52 (9th Cir. 1986).

Agencies may also restrict the testimony of former employees.

Fowkes v. Dravo Corporation, 5 F.R.D. 51 (E.D. Pa. 1945). In the Fowkes

case, a former employee and a current employee of the Treasury

Department refused to testify or produce documents pursuant to

subpoenas because they were instructed not to do so by the Deputy

Commissioner of Internal Revenue. Because the employees obtained the

information while in their official positions, disclosure could not be

permitted unless in accordance with a Treasury regulation and a

Treasury Department circular. The court upheld the Treasury

Department's refusal to allow the testimony, at least until the

procedures in the Department circular were followed. The court based

its decision on the nature of the information. Thus, it is generally

understood that, as long as a former employee acquired the information

in an official capacity, persons seeking his or her testimony are still

required to comply with an agency regulation limiting disclosure or

testimony. As noted previously, the proposed rule will not bar former

NCUA employees from serving as expert witnesses, however, former NCUA

employees are prohibited from testifying about specific matters for

which they had responsibility during their employment unless permission

is granted pursuant to the regulation.

With respect to the cost of processing and responding to requests

for records and testimony, an agency may prescribe regulations

establishing the charge for a service or thing of value provided by the

agency. 31 U.S.C. 9701.

Regulatory Procedures

Regulatory Flexibility Act

The Regulatory Flexibility Act requires the NCUA to prepare an

analysis to describe any significant economic impact any proposed

regulation may have on a substantial number of small credit unions,

meaning those under $1 million in assets.

The NCUA Board has determined and certifies that the proposed rule, if

adopted, will not have a significant economic impact on a substantial

number of small credit unions. The reasons for this determination are

that the copying and witness fees to be charged to persons and entities

submitting requests under the regulation are not large and will not

create a financial burden. The proposed rule will not create any

significant demand for legal, accounting, or consulting expenditures.

Accordingly, the NCUA Board has determined that a Regulatory

Flexibility Analysis is not required.

Paperwork Reduction Act

The NCUA has determined that the requirement that a person must

submit a written request containing the information identified in

Sec. 792.43 in order to obtain nonpublic records or the testimony of an

NCUA employee constitutes a collection of information under the

Paperwork Reduction Act. NCUA is submitting a copy of this proposed

rule to the Office of Management and Budget (OMB) for its review.

It is NCUA's view that the time spent in preparing a written

request will ensure the fair and efficient processing of such requests.

In addition, the information and analysis is related to the need for

the evidence and, given that the written request arises in the context

of a legal proceeding, this is work that will most likely already have

been undertaken by the requester as part of the preparation of the

case.

The NCUA estimates that it will take an average of two or three

hours to prepare the written request. The NCUA currently receives two

or three requests per month so the total annual reporting burden is

estimated to be no more than 72 hours.

The Paperwork Reduction Act of 1995 and OMB regulations require

that the public be provided an opportunity to comment on information

collection requirements, including an agency's estimate of the burden

of the collection of information. The NCUA Board invites comment on:

(1) whether the collection of the information is necessary for the

proper performance of the functions of the NCUA; (2) the accuracy of

the NCUA's estimate of the burden of the collection of information; (3)

ways to enhance the quality, utility, and clarity of the information to

be collected; and (4) ways to minimize the burden of collection of

information. Send comments to: OMB Reports Management Branch, New

Executive Office Building, Room 10202, Washington, DC 20503. Attn:

Alexander T. Hunt. Please send NCUA a copy of any comments you submit

to OMB. NCUA will publish a notice in the Federal Register once OMB

action is taken on the submitted request.

OMB is required to make a decision concerning the collection of

information contained in this proposed rule between 30 and 60 days

after publication of the proposed rule in the Federal Register.

Therefore, a comment to OMB is best assured of having its full effect

if OMB receives it within 30 days of publication. This does not affect

the deadline for the public to comment to the NCUA Board on the

proposed rule.

Executive Order 12612

The NCUA Board has determined that this proposed rule will not have

a substantial direct effect on the States, on the relationship between

the national government and the States, or on the distribution of power

and responsibilities among various levels of government.

List of Subjects in 12 CFR Part 792

Administrative practice and procedure, Credit unions, Confidential

business information, Freedom of Information Act, Government employees,

Reporting and recordkeeping requirements, Subpoenas.

[[Page 19944]]

By the National Credit Union Administration Board on April 16,

1997.

Becky Baker,

Secretary of the Board.

For the reasons set forth in the preamble, NCUA proposes to amend

12 CFR part 792 as set forth below:

PART 792--[AMENDED]

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

follows:

Authority: 5 U.S.C. 301, 552, 552a, 552b; 12 U.S.C. 1752a(d),

1766, 1789, 1795f; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p.

235; E.O. 12958, 60 FR 19825, 3 CFR, 1995 Comp., p. 333.

2. Amend Sec. 792.4 to remove paragraph (b)(3) and revise paragraph

(a) to read as follows:

Sec. 792.4 Release of exempt records.

(a) Prohibition against disclosure. Except as provided in paragraph

(b) of this section and subpart C of this part, no officer, employee,

or agent of NCUA or of any federally-insured credit union shall

disclose or permit the disclosure of any exempt records of the Agency

to any person other than those NCUA or credit union officers,

employees, or agents properly entitled to such information for the

performance of their official duties.

* * * * *

3. Revise subpart C of part 792 to read as follows:

Subpart C--Production of Nonpublic Records and Testimony of NCUA

Employees in Legal Proceedings

Sec.

792.40 What does this subpart prohibit?

792.41 When does this subpart apply?

792.42 How do I request nonpublic records or testimony?

792.43 What must my written request contain?

792.44 When should I make a request?

792.45 Where do I send my request?

792.46 What will the NCUA do with my request?

792.47 If my request is granted, what fees apply?

792.48 If my request is granted, what restrictions may apply?

792.49 Definitions.

Subpart C--Production of Nonpublic Records and Testimony of NCUA

Employees in Legal Proceedings

Sec. 792.40 What does this subpart prohibit?

This subpart prohibits the release of nonpublic records or the

appearance of an NCUA employee to testify in legal proceedings except

as provided in this subpart. Any person possessing nonpublic records

may release them or permit their disclosure only as provided in this

subpart.

(a) Duty of NCUA employees. (1) If an NCUA employee is served with

a subpoena requiring him or her to appear as a witness or produce

records, the employee must promptly notify the Office of General

Counsel. The General Counsel has the authority to instruct NCUA

employees to refuse appearing as a witness or to withhold nonpublic

records. The General Counsel may let an NCUA employee provide

testimony, including expert or opinion testimony, if the General

Counsel determines that the need for the testimony clearly outweighs

contrary considerations.

(2) If a court or other appropriate authority orders or demands

expert or opinion testimony or testimony beyond authorized subjects

contrary to the General Counsel's instructions, an NCUA employee must

immediately notify the General Counsel of the order and respectfully

decline to comply. An NCUA employee must decline to answer questions on

the grounds that this subpart forbids such disclosure and should

produce a copy of this subpart, request an opportunity to consult with

the Office of General Counsel, and explain that providing such

testimony without approval may expose him or her to disciplinary or

other adverse action.

(b) Duty of persons who are not NCUA employees. (1) If you are not

an NCUA employee but have custody of nonpublic records and are served

with a subpoena requiring you to appear as a witness or produce

records, you must promptly notify the NCUA about the subpoena. Also,

you must notify the issuing court or authority and the person or entity

for whom the subpoena was issued of the contents of this subpart.

Notice to the NCUA is made by sending a copy of the subpoena to the

General Counsel of the NCUA, Office of General Counsel, 1775 Duke

Street, Alexandria, Virginia 22314-3428. After receiving notice, the

NCUA may advise the issuing court or authority and the person or entity

for whom the subpoena was issued that this subpart applies and, in

addition, may intervene, attempt to have the subpoena quashed or

withdrawn, or register appropriate objections.

(2) After notifying the Office of General Counsel, you should

respond to a subpoena by appearing at the time and place stated in the

subpoena. Unless authorized by the General Counsel, you should decline

to produce any records or give any testimony, basing your refusal on

this subpart. If the issuing court or authority orders the disclosure

of records or orders you to testify, you should continue to decline to

produce records or testify and should advise the Office of General

Counsel.

(c) Penalties. Anyone who discloses nonpublic records or gives

testimony related to those records, except as expressly authorized by

the NCUA or as ordered by a federal court after NCUA has had the

opportunity to be heard, may face the penalties provided in 18 U.S.C.

641 and other applicable laws. Also, former NCUA employees, in addition

to the prohibition contained in this subpart, are subject to the

restrictions and penalties of 18 U.S.C. 207.

Sec. 792.41 When does this subpart apply?

This subpart applies if you want to obtain nonpublic records or

testimony of a NCUA employee for legal proceedings. It doesn't apply to

records that the NCUA is required to release under the Freedom of

Information Act (FOIA), records which the NCUA releases to federal or

state investigatory agencies under Sec. 792.4(b)(2), or the Privacy

Act, 5 U.S.C. 552a.

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

(a) To request nonpublic records or the testimony of an NCUA

employee, you must submit a written request to the General Counsel of

the NCUA. If you serve a subpoena on the NCUA or an NCUA employee

before submitting a written request and receiving a final

determination, the NCUA will oppose the subpoena on the grounds that

you failed to follow the requirements of this subpart. You may serve a

subpoena as long as it is accompanied by a written request that

complies with this subpart.

(b) To request nonpublic records that are part of the records of

the Office of the Inspector General or the testimony of an NCUA

employee on matters within the knowledge of the NCUA employee as a

result of his or her employment with the Office of the Inspector

General, you must submit a written request to the Office of the

Inspector General. Your request will be handled in accordance with the

provisions of this subpart except that the Inspector General will be

responsible for those determinations that would otherwise be made by

the General Counsel.

Sec. 792.43 What must my written request contain?

Your written request for records or testimony must include:

(a) The caption of the legal proceeding, docket number, and name of

the court or other authority involved.

(b) A copy of the complaint or equivalent document setting forth

the

[[Page 19945]]

assertions in the case and any other pleading or document necessary to

show relevance.

(c) A list of categories of records sought, a detailed description

of how the information sought is relevant to the issues in the legal

proceeding, and a specific description of the substance of the

testimony or records sought.

(d) A statement as to how the need for the information outweighs

the need to maintain the confidentiality of the information and

outweighs the burden on the NCUA to produce the records or provide

testimony.

(e) A statement indicating that the information sought is not

available from another source, such as a credit union's own books and

records, other persons or entities, or the testimony of someone other

than an NCUA employee, for example, retained experts.

(f) A description of all prior decisions, orders, or pending

motions in the case that bear upon the relevance of the records or

testimony you want.

(g) The name, address, and telephone number of counsel to each

party in the case.

(h) An estimate of the amount of time you anticipate that you and

other parties will need with each NCUA employee for interviews,

depositions, or testifying.

Sec. 792.44 When should I make a request?

You should submit your request at least 45 days before the date

that you need the records or testimony. If you want to have your

request processed in less time, you must explain why you couldn't

submit the request earlier and why you need expedited processing. If

you are requesting the testimony of an NCUA employee, the NCUA expects

you to anticipate your need for the testimony in sufficient time to

obtain it by a deposition. The General Counsel may deny a request for

testimony at a legal proceeding unless you explain why you could not

use deposition testimony. The General Counsel will determine the

location of a deposition taking into consideration the NCUA's interest

in minimizing the disruption for an NCUA employee's work schedule and

the costs and convenience of other persons attending the deposition.

Sec. 792.45 Where do I send my request?

You must send your request or subpoena for records or testimony to

the attention of the General Counsel for the NCUA, Office of General

Counsel, 1775 Duke Street, Alexandria, Virginia 22314-3428. You must

send your request or subpoena for records or testimony from the Office

of the Inspector General to the attention of the NCUA Inspector

General, 1775 Duke Street, Alexandria, Virginia 22314-3428.

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

(a) Factors the NCUA will consider. The NCUA may consider various

factors in reviewing a request for nonpublic records or testimony of

NCUA employees, including:

(1) Whether disclosure would assist or hinder the NCUA in

performing its statutory duties or use NCUA resources unreasonably,

including whether responding to the request will interfere with NCUA

employees' ability to do their work.

(2) Whether disclosure is necessary to prevent the perpetration of

a fraud or other injustice in the matter or if you can get the records

or testimony you want from sources other than the NCUA.

(3) Whether the request is unduly burdensome.

(4) Whether disclosure would violate a statute, executive order, or

regulation, for example, the Privacy Act, 5 U.S.C. 552a.

(5) Whether disclosure would reveal confidential, sensitive or

privileged information, trade secrets or similar, confidential

commercial or financial information, or would otherwise be

inappropriate for release and, if so, whether a confidentiality

agreement or protective order as provided in Sec. 792.48(a) can

adequately limit the disclosure.

(6) Whether the disclosure would interfere with law enforcement

proceedings, compromise constitutional rights, or hamper NCUA research

or investigatory activities.

(7) Whether the disclosure could result in NCUA appearing to favor

one litigant over another.

(8) Any other factors the NCUA determines to be relevant to the

interests of the NCUA.

(b) Review of your request. The NCUA will process your request in

the order it is received. The NCUA will try to respond to your request

within 45 days, but this may vary depending on the scope of your

request.

(c) Final determination. The General Counsel makes the final

determination on requests for nonpublic records or NCUA employee

testimony. All final determinations are in the sole discretion of the

General Counsel. The General Counsel will notify you and the court or

other authority of the final determination of your request. In

considering your request, the General Counsel may contact you to inform

you of the requirements of this subpart, ask that the request or

subpoena be modified or withdrawn, or may try to resolve the request or

subpoena informally without issuing a final determination. You may seek

judicial review of the final determination under the Administrative

Procedure Act, 5 U.S.C. 702.

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

(a) Generally. You must pay any fees associated with complying with

your request, including copying fees for records and witness fees for

testimony. The General Counsel may condition the production of records

or appearance for testimony upon advance payment of a reasonable

estimate of the fees.

(b) Fees for records. You must pay all fees for searching,

reviewing and duplicating records produced in response to your request.

The fees will be the same as those charged by the NCUA under its

Freedom of Information Act regulations, Sec. 792.5.

(c) Witness fees. You must pay the fees, expenses, and allowances

prescribed by the court's rules for attendance by a witness. If no such

fees are prescribed, the local federal district court rule concerning

witness fees, for the federal district court closest to where the

witness appears, will apply. For testimony by current NCUA employees,

you must pay witness fees, allowances, and expenses to the General

Counsel by check made payable to the ``National Credit Union

Administration'' within 30 days from receipt of NCUA's billing

statement. For the testimony of a former NCUA employee, you must pay

witness fees, allowances, and expenses directly to the former employee,

in accordance with 28 U.S.C. 1821 or other applicable statutes.

(d) Certification of records. The NCUA may authenticate or certify

records to facilitate their use as evidence. If you require

authenticated records, you must request certified copies at least 45

days before the date they will be needed. The request should be sent to

the General Counsel. You will be charged a certification fee of $5.00

per document.

(e) Waiver of fees. A waiver or reduction of any fees in connection

with the testimony, production, or certification or authentication of

records may be granted in the discretion of the General Counsel.

Waivers will not be granted routinely. If you request a waiver, your

request for records or testimony must state the reasons why a waiver

should be granted.

[[Page 19946]]

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

(a) Records. The General Counsel may impose conditions or

restrictions on the release of nonpublic records, including a

requirement that you obtain a protective order or execute a

confidentiality agreement with the other parties in the legal

proceeding that limits access to and any further disclosure of the

nonpublic records. The terms of a confidentiality agreement or

protective order must be acceptable to the General Counsel. In cases

where protective orders or confidentiality agreements have already been

executed, the NCUA may condition the release of nonpublic records on an

amendment to the existing protective order or confidentiality

agreement.

(b) Testimony. The General Counsel may impose conditions or

restrictions on the testimony of NCUA employees, including, for

example, limiting the areas of testimony or requiring you and the other

parties to the legal proceeding to agree that the transcript of the

testimony will be kept under seal or will only be used or made

available in the particular legal proceeding for which you requested

the testimony. The General Counsel may also require you to provide a

copy of the transcript of the testimony to the NCUA at your expense.

Sec. 792.49 Definitions.

Legal proceedings means any matter before any federal, state or

foreign administrative or judicial authority, including courts,

agencies, commissions, boards or other tribunals, involving such

proceedings as lawsuits, licensing matters, hearings, trials,

discovery, investigations, mediation or arbitration. When the NCUA is a

party to a legal proceeding, it will be subject to the applicable rules

of civil procedure governing production of documents and witnesses,

however, this subpart will still apply to the testimony of former NCUA

employees.

NCUA employee means current and former officials, members of the

Board, officers, directors, employees and agents of the National Credit

Union Administration, including contract employees and consultants and

their employees. This definition does not include persons who are no

longer employed by the NCUA and are retained or hired as expert

witnesses or agree to testify about general matters, matters available

to the public, or matters with which they had no specific involvement

or responsibility during their employment.

Nonpublic records means any NCUA records that are exempt from

disclosure under Sec. 792.3, the NCUA regulations implementing the

provisions of the Freedom of Information Act. For example, this means

records created in connection with NCUA's examination and supervision

of insured credit unions, including examination reports, internal

memoranda, and correspondence, and, also, records created in connection

with NCUA's enforcement and investigatory responsibilities.

Subpoena means any order, subpoena for records or other tangible

things or for testimony, summons, notice or legal process issued in a

legal proceeding.

Testimony means any written or oral statements made by an

individual in connection with a legal proceeding including personal

appearances in court or at depositions, interviews in person or by

telephone, responses to written interrogatories or other written

statements such as reports, declarations, affidavits, or certifications

or any response involving more than the delivery of records.

[FR Doc. 97-10373 Filed 4-23-97; 8:45 am]

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