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

OVERSEAS PRIVATE INVESTMENT CORPORATION

22 CFR Parts 706 and 713

RIN 3420-AA02

Production of Nonpublic Records and Testimony of OPIC Employees

in Legal Proceedings

AGENCY: Overseas Private Investment Corporation.

ACTION: Notice of proposed rulemaking.

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SUMMARY: OPIC proposes to establish rules regarding subpoenas seeking

nonpublic records or the testimony of OPIC employees in legal

proceedings. The proposed rule facilitates access to records in OPIC's

custody by centralizing agency decision-making with respect to demands

for records or testimony in such legal proceedings. The proposed rule

provides procedures, requirements and information on how OPIC 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 ensure an efficient use of OPIC

resources, promote uniformity in decisions, protect confidential

information, maintain agency control over the release of official

information, protect the interests of the United States, and provide

guidance to parties. The proposed rule will also amend the current rule

regarding release of OPIC records which are exempt from disclosure

under the Freedom of Information Act, to conform with the procedures

provided in this proposed rule.

DATES: Submit comments on or before February 8, 1999.

ADDRESSES: Direct comments to Mitchel Neurock, Counsel for

Administrative Affairs. Mail or hand-deliver comments to: Overseas

Private Investment Corporation, 1100 New York Avenue, NW, Washington,

DC 20527. Fax comments to (202) 408-0297. E-mail comments to

[email protected]. Please send comments via one method only.

FOR FURTHER INFORMATION CONTACT: Mitchel Neurock, Counsel for

Administrative Affairs, at (202) 336-8400.

SUPPLEMENTARY INFORMATION:

Background

OPIC receives subpoenas and requests for OPIC employees to provide

evidence in legal proceedings. Typically, subpoenas are for OPIC

records which are not available to the public under the Freedom of

Information Act (FOIA). Also, OPIC receives subpoenas and requests for

OPIC employees to appear as witnesses in legal proceedings in

conjunction with requests for nonpublic records or to provide

testimony.

In recent years, the number of requests has averaged 3 to 4 per

year. Often, these subpoenas and requests relate to litigation

involving projects financed and/or insured in whole or in part by OPIC,

where one or more parties want to use nonpublic records, such as OPIC

financing documents, in the case. In addition, parties to litigation

frequently wish to have an OPIC employee, often a finance or insurance

officer, testify to establish the authenticity of the records or to

explain the information contained in those records. If OPIC provides

these records and an OPIC employee appears as a witness, this will

cause a significant disruption in the employee's work schedule. In many

cases, parties want to use the OPIC employee as an expert witness on

matters such as the fundamentals of project finance or other issues

involving opinion evidence. OPIC's experience has been that, in

practically all cases, the parties can address these issues by

eliciting the testimony of other witnesses, including the testimony of

their own independent expert witnesses. They may also use their own

records.

OPIC's current regulations fail to inform parties about any matter

concerning submission of subpoenas. There is no guidance for parties

seeking to submit subpoenas addressing when parties should submit a

request for nonpublic documents or testimony, the time period for

OPIC's review of such a request, potential fees, or, if a request is

granted, any restrictions which OPIC might place upon the disclosure of

records or the appearance of an OPIC employee as a witness. There is

also no guidance for parties about the factors OPIC will consider in

making its determination in response to such requests.

The proposed rule fills in these gaps in OPIC's current

regulations. OPIC has tried to write the proposed rule in an easy-to-

read, question-and-answer format, to promote straightforward English.

The proposed rule, in brief: prohibits disclosure of nonpublic records

or testimony by OPIC employees absent compliance with the rule; lets

the public know what information to submit and what factors OPIC will

consider; and sets out filing fees, deadlines and potential

restrictions on disclosure of nonpublic documents and testimony of OPIC

employees. The proposed charges for witnesses are the same as those

provided by the federal courts, and the fees relating to the 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 just matters before courts). The proposed

rule applies to former as well as to current OPIC employees. Former

OPIC employees remain prohibited from testifying about specific matters

for which they had responsibility during their OPIC 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 expert witnesses, for example).

The proposed rule solves some problems which have arisen in the

past. It should eliminate or reduce eleventh hour requests for

nonpublic documents or testimony of OPIC employees. The procedures and

criteria will ensure a more efficient use of OPIC resources, will

minimize the possibility of involving OPIC in issues unrelated to its

responsibilities, will promote

[[Page 68214]]

uniformity in responding to such requests, and subpoenas, and will

maintain the necessary impartiality of OPIC in matters between private

litigants. The proposed rule will serve OPIC's interest in protecting

sensitive, confidential and privileged information and records

generated by its work.

The proposed rule is procedural, not substantive. It does not

confer a benefit upon anyone. It does not create a right to obtain OPIC

records or the testimony of any OPIC employee, past or present, nor

does it create any additional right or privilege not already available

to OPIC to deny such a request. OPIC makes no waiver of its sovereign

immunity by proposing or implementing this rule. Failure to comply with

the rule, however, constitutes grounds for OPIC's denial of any

request.

OPIC is most interested in receiving comments on the application of

the proposed regulation to former as well as to current employees,

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

exception from coverage for expert testimony by former OPIC employees,

and any other factors which commentors believe OPIC should consider in

addition to those set out in Sec. 713.7 in reaching a final decision.

Legal Authority

More than 60 government agencies and departments 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, OPIC has statutory authority to ``take such actions as may be

necessary or appropriate to carry out the powers'' granted it by

Congress. 22 U.S.C. 2199(d).

The housekeeping statute expressly states that it does not provide

a basis for withholding information or limiting the availability of

records, but authorizes a 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.'' 5

U.S.C. 301. These regulations are known as ``Touhy regulations,''

thanks to a landmark Supreme Court decision, United States ex rel.

Touhy v. Ragen, 340 U.S. 462 (1951).

Touhy was the first in a long line of cases which have upheld

regulations restricting the rights 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, 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, as well as the possibilities of

harm from unrestricted disclosure in court, justify centralized

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

that agency's Touhy regulations prior to seeking judicial enforcement

of a subpoena. Davis v. Braswell Motor Freight Lines, Inc., 363 F.2d

600 (5th Cir. 1966); 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).

Generally speaking, 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 regulations. Touhy, 340 U.S. at 467-70; United

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

also upheld regulations which 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).

There is also precedent suggesting that agencies may also restrict

the testimony of former employees. Fowkes v. Dravo Corporation, 5

F.R.D. 51 (E.D. Pa. 1945). In Fowkes, a former employee and a current

employee of the Treasury Department refused to testify or produce

documents pursuant to subpoenas, in accordance with instructions from

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 Fowkes court upheld the

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

the procedures in the Department's circular were followed. The court

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

generally understood that, so long as a former employee acquired the

information in an official capacity, persons seeking the former

employee's testimony are still required to comply with an agency

regulation limiting disclosure or testimony. As noted previously,

OPIC's proposed rule will not bar former OPIC employees from serving as

expert witnesses; however, former OPIC employees are prohibited from

testifying about specific matters for which they had responsibility

during their employment, unless permission is granted pursuant to the

proposed rule.

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.

The proposed rule is not intended to restrict access to records

under the Freedom of Information Act (5 U.S.C. 552), the Privacy Act (5

U.S.C. 552a), or any other authority. At the same time, nothing in this

proposed rule would permit disclosure of information by OPIC or its

employees except as provided by statute or other applicable law.

Regulatory Procedures

Regulatory Flexibility Act

The Regulatory Flexibility Act requires OPIC to prepare an analysis

to describe any significant economic impact any proposed regulation may

have on any small business or other small entity. 5 U.S.C. 602, 603.

OPIC has determined and certifies that the proposed rule, if adopted,

will not have a significant economic impact on any entity. 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, OPIC has determined

that a Regulatory Flexibility Analysis is not required.

Paperwork Reduction Act

OPIC has determined that this rulemaking is not subject to the

Paperwork Reduction Act, because OPIC averages less than 10 requests

per year, and expects this level of activity to remain below this

threshold. 5 CFR 1320.3(c).

[[Page 68215]]

Executive Order 12612

OPIC has determined that the 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 22 CFR Part 713

Administrative practice and procedure, Confidential business

information, Freedom of Information Act, Government employees,

Reporting and recordkeeping requirements, Subpoenas.

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

22 CFR part 706 and add part 713 as set forth below:

PART 706--[AMENDED]

1. The authority citation for part 706 is revised to read as

follows:

Authority: The Freedom of Information Act, as amended, 5 U.S.C.

552; 5 U.S.C. 301; 22 U.S.C. 2199(d).

2. Amend Sec. 706.22, to redesignate the existing test as paragraph

(a). In redesignated paragraph (a), further redesignate paragraphs (a)

through (f) as paragraphs (a)(1) through (a)(6). Add paragraph (b) to

read as follows:

Sec. 706.22 Information and records not generally available to the

public.

* * * * *

(b) Prohibition against disclosure. Except as provided in part 713

of this chapter, no officer, employee or agent of OPIC shall disclose

or permit the disclosure of any exempt records of OPIC or of any

information described in paragraph (a) of this section to any person

other than those OPIC officers, employees or agents properly entitled

to such information for the performance of their official duties.

3. Add Part 713 to read as follows:

PART 713--PRODUCTION OF NONPUBLIC RECORDS AND TESTIMONY OF OPIC

EMPLOYEES IN LEGAL PROCEEDINGS

Sec.

713.1 What does this part prohibit?

713.2 When does this part apply?

713.3 How do I request nonpublic records or testimony?

713.4 What must my written request contain?

713.5 When should I make my request?

713.6 Where should I send my request?

713.7 What will OPIC do with my request?

713.8 If my request is granted, what fees apply?

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

713.10 Definitions.

Authority: 5 U.S.C. 301; 5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C.

702; 18 U.S.C. 207; 18 U.S.C. 641; 22 U.S.C. 2199(d); 28 U.S.C.

1821.

Sec. 713.1 What does this part prohibit?

This part prohibits the release of nonpublic records or the

appearance of an OPIC employee to testify in legal proceedings except

as provided in this part. Any person possessing nonpublic records may

release them or permit their disclosure only as provided in this part.

(a) Duty of OPIC employees. (1) If you are an OPIC employee and you

are served with a subpoena requiring you to appear as a witness or to

produce records, you must promptly notify the Vice-President/General

Counsel in the Department of Legal Affairs. The Vice-President/General

Counsel has the authority to instruct OPIC employees to refuse to

appear as a witness or to withhold nonpublic records. The Vice-

President/General Counsel may let an OPIC employee provide testimony,

including expert or opinion testimony, if the Vice-President/General

Counsel determines that the need for the testimony clearly outweighs

contrary considerations.

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

from you expert or opinion testimony or testimony beyond authorized

subjects contrary to the Vice-President/General Counsel's instructions,

you must immediately notify the Vice-President/General Counsel of the

order an then respectfully decline to comply with the order. You must

decline to answer questions on the grounds that this part forbids such

disclosure. You should produce a copy of this part, request an

opportunity to consult with the Vice-President/General Counsel, and

explain that providing such testimony without approval may expose you

to disciplinary or other adverse action.

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

an OPIC 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 OPIC of the subpoena. Also, you must

notify the issuing court or authority and the person or entity for whom

the subpoena was issued of the content of this part. Provide notice to

OPIC by sending a copy of the subpoena to the Vice-President/General

Counsel, OPIC, 1100 New York Avenue, NW, Washington, DC 20527. After

receiving notice, OPIC may advise the issuing court or authority and

the person or entity for whom the subpoena was issued that this part

applies and, in addition, may intervene, attempt to have the subpoena

quashed or withdrawn, or register appropriate objections.

(2) After notifying the Vice-President/General Counsel, respond to

a subpoena by appearing at the time and place stated in the subpoena.

Unless otherwise authorized by the Vice-President/General Counsel,

decline to produce any records or give any testimony, basing your

refusal on this part. If the issuing court or authority orders the

disclosure of records or orders you to testify, decline to produce

records or testify and advise the Vice-President/General Counsel.

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

testimony related to those records, except as expressly authorized by

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

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

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

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

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

Sec. 713.2 When does this part apply?

This part applies if you want to obtain nonpublic records or

testimony of an OPIC employee for a legal proceeding. It does not apply

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

Information Act (FOIA), records that OPIC releases to federal or state

investigatory agencies, or records that OPIC is required to release

pursuant to the Privacy Act, 5 U.S.C. 552a.

Sec. 713.3 How do I request nonpublic records or testimony?

To request nonpublic records or the testimony of an OPIC employee,

you must submit a written request to the Vice-President/General Counsel

of OPIC. If you serve a subpoena on OPIC or an OPIC employee before

submitting a written request and receiving a final determination, OPIC

will oppose the subpoena on the grounds that you failed to follow the

requirements of this part. You may serve a subpoena as long as it is

accompanied by a written request that complies with this part.

Sec. 713.4 What must my written request contain?

Your written request for records or testimony must include:

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

the court or other authority involved.

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

the assertions in the case and any other

[[Page 68216]]

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 OPIC to produce the records or provide

testimony.

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

available from another source, such as the requestor's own books and

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

than an OPIC employee, such as 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 OPIC employee for interviews,

depositions, and/or testimony.

Sec. 713.5 When should I make a request?

Submit your request at least 45 days before the date you need the

records or testimony. If you want your request processed in a shorter

time, you must explain why you could not submit the request earlier and

why you need such expedited processing. If you are requesting the

testimony of an OPIC employee, OPIC expects you to anticipate your need

for the testimony in sufficient time to obtain it by deposition. The

Vice-President/General Counsel may well deny a request for testimony at

a legal proceeding unless you explain why you could not have used

deposition testimony instead. The Vice-President/General Counsel will

determine the location of a deposition, taking into consideration

OPIC's interest in minimizing the disruption for an OPIC employee's

work schedule and the costs and convenience of other persons attending

the deposition.

Sec. 713.6 Where should I send my request?

Send your request or subpoena for records or testimony to the

attention of the Vice-President/General Counsel, OPIC, 1100 New York

Avenue NW, Washington, DC 20527.

Sec. 713.7 What will OPIC do with my request?

(a) Factors OPIC will consider. OPIC may consider various factors

in reviewing a request for nonpublic records or testimony of OPIC

employees, including:

Whether disclosure would assist or hinder OPIC in performing its

statutory duties or use OPIC resources unreasonably, including whether

responding to the request will interfere with OPIC 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 OPIC.

(3) Whether the request is unduly burdensome.

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

regulation, such as 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. 713.9(a) can

adequately limit the disclosure.

(6) Whether the disclosure would interfere with law enforcement

proceedings, compromise constitutional rights, or hamper OPIC programs

or other OPIC operations.

(7) Whether the disclosure could result in OPIC's appearing to

favor one litigant over another.

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

interests of OPIC.

(b) Review of your request. OPIC will process your request in the

order it is received. OPIC 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 Vice-President/General Counsel makes

the final determination on requests for nonpublic records or OPIC

employee testimony. All final determinations are in the sole discretion

of the Vice President/General Counsel. The Vice-President/General

Counsel will notify you and the court or other authority of the final

determination of your request. In considering your request, the Vice-

President/General Counsel may contact you to inform you of the

requirements of this part, 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. 713.8 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 Vice-President/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 OPIC under its Freedom of

Information Act regulations, Sec. 706.26 of this chapter.

(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 OPIC employees,

you must pay witness fees, allowances, and expenses to the Vice-

President/General Counsel by check made payable to the ``Overseas

Private Investment Corporation'' within 30 days from receipt of OPIC's

billing statement. For the testimony of a former OPIC 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. OPIC 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. Send your request to the

Vice-President/General Counsel. OPIC will charge you 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 Vice-President/General

Counsel. Waivers will not be granted routinely. If you request a

waiver, your request for records or testimony must state the reasons

why a waiver should be granted.

Sec. 713.9 If my request is granted, what restrictions may apply?

(a) Records. The Vice-President/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

[[Page 68217]]

and any further disclosure of the nonpublic records. The terms of a

confidentiality agreement or protective order must be acceptable to the

Vice-President/General Counsel. In cases where protective orders or

confidentiality agreements have already been executed, OPIC may

condition the release of nonpublic records on an amendment to the

existing protective order or confidentiality agreement.

(b) Testimony. The Vice-President/General Counsel may impose

conditions or restrictions on the testimony of OPIC 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 Vice-President/General Counsel may also

require you to provide a copy of the transcript of the testimony to

OPIC at your expense.

Sec. 713.10 Definitions.

For purposes of this part:

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 OPIC 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 part will still apply to the testimony of former OPIC

employees.

Nonpublic records means any OPIC records which are exempt from

disclosure by statute or under part 706 of this chapter, OPIC's

regulations implementing the provisions of the Freedom of Information

Act. For example, this means records created in connection with OPIC's

receipt, evaluation and action on actual and proposed OPIC finance

projects and insurance policies (whether such projects or policies were

canceled or not), including all reports, internal memoranda, opinions,

interpretations, and correspondence, whether prepared by OPIC employees

or by persons under contract, as well as confidential business

information submitted by parties seeking to do business with OPIC.

Whether OPIC has actually chosen in practice to apply any exemption to

specific documents is irrelevant to the question of whether they are

``nonpublic'' for the purposes of this part.

OPIC employee means current and former officials, members of the

Board of Directors, officers, directors, employees and agents of the

Overseas Private Investment Corporation, including contract employees,

consultants and their employees. This definition does not include

persons who are no longer employed by OPIC 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.

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.

Dated: December 4, 1998.

Michael C. Cushing,

Managing Director for Administration.

[FR Doc. 98-32810 Filed 12-9-98; 8:45 am]

BILLING CODE 3210-01-M