Federal Register / Vol. 62, No. 209 / Wednesday, October 29, 1997 / Rules and Regulations 56051

handlers. The benefits of providing

another tool to the industry to assist

them in making business decisions far

outweigh the estimated 5 minutes it will

take to complete the form. Further, any

additional reporting may be offset by

reduced reporting for those handlers

choosing to utilize this option in lieu of

other options available for satisfying

reserve obligations. As with all Federal

marketing order programs, reports and

forms are periodically reviewed to

reduce information requirements and

duplication by industry and public

sector agencies.

As noted in the initial regulatory

flexibility analysis, the Department has

not identified any relevant Federal rules

that duplicate, overlap or conflict with

this rule. Information generated by

State, Federal, and private sector reports

pertains to almonds in general and does

not contain specific producer and

handler information. Therefore, such

information would not be detailed

enough to be used for the specific

purposes required under the order.

The amendment to the marketing

order was voted on in a referendum and

was overwhelmingly supported by

almond growers. This rule will establish

procedures to implement the

amendment that authorized transfers of

reserve obligations. There are no

alternatives that would result in the

additional flexibility sought by the

industry.

In addition, the Board’s meeting was

widely publicized throughout the

almond industry and all interested

persons were invited to attend the

meeting and participate in Board

deliberations on all issues. Like all

Board meetings, the February 18, 1997,

meeting was a public meeting and all

entities, both large and small, were able

to express views on this issue. The

Board itself is composed of ten industry

members, of which five are handlers

and five are growers.

A proposed rule concerning this

action was issued by the Department on

April 4, 1997, and published in the

Federal Register on April 10, 1997 (62

FR 17569). It was also made available

through the Internet by the Office of the

Federal Register. A 60 day comment

period was provided to allow interested

persons to respond to the proposal. No

comments were received.

After consideration of all relevant

matter presented, including the

information and recommendation

submitted by the Board and other

available information, it is hereby found

that this rule, as hereinafter set forth,

will tend to effectuate the declared

policy of the Act.

The proposed rule regarding the

interhandler transfer of almonds also

announced the AMS’s intent to request

a revision to the currently approved

information collection requirements

issued under the marketing order. The

60 day comment period was also

provided to allow interested persons the

opportunity to respond to the notice. No

comments were received on the

information collection requirements.

In accordance with the Paperwork

Reduction Act of 1995 (44 U.S.C.

Chapter 35), the information collection

requirements that are contained in this

rule have been approved by the Office

of Management and Budget (OMB) and

have been assigned OMB No. 0581–

0071.

List of Subjects in 7 CFR Part 981

Almonds, Marketing agreements,

Nuts, Reporting and recordkeeping

requirements.

For the reasons set forth in the

preamble, 7 CFR part 981 is amended as

follows:

PART 981—ALMONDS GROWN IN

CALIFORNIA

1. The authority citation for 7 CFR

part 981 continues to read as follows:

Authority: 7 U.S.C. 601–674.

2. In § 981.455, paragraph (c) is

redesignated as paragraph (d) and a new

paragraph (c) is added to read as

follows:

§ 981.455 Interhandler transfers.

* * * * *

(c) Transfers of reserve withholding

obligation. A handler may transfer

reserve withholding obligation to other

handlers pursuant to § 981.55 after

having filed with the Board an ABC

Form 11 executed by both handlers. The

Board shall approve the transfer upon

receipt of the properly completed form.

* * * * *

Dated: October 23, 1997.

Eric M. Forman,

Acting Deputy Administrator, Fruit and

Vegetable Programs.

[FR Doc. 97–28630 Filed 10–28–97; 8:45 am]

BILLING CODE 3410–02–P

NUCLEAR REGULATORY

COMMISSION

10 CFR Chapter I

RIN 3150–AF69

Information Collection Requirements;

Statutory and Technical Amendments;

Correction

AGENCY: Nuclear Regulatory

Commission.

ACTION: Final rule; correction.

SUMMARY: This document corrects a

notice appearing in the Federal Register

on October 6, 1997 (62 FR 52184). This

action is necessary to correct an

erroneous instruction.

EFFECTIVE DATE: October 6, 1997.

FOR FURTHER INFORMATION CONTACT:

David L. Meyer, Chief, Rules and

Directives Branch, Division of

Administrative Services, Office of

Administration, Washington, D.C.

20555–0001, telephone (301) 415–7162.

SUPPLEMENTARY INFORMATION: On page

52188, in the second column,

instruction number 24 is corrected to

read, ‘‘24. In § 60.8, paragraph (a) is

revised to read as follows:’’.

Dated at Rockville, MD, this 22nd day of

October 1997.

For the Nuclear Regulatory Commission.

David L. Meyer,

Chief, Rules and Directives Branch, Division

of Administrative Services, Office of

Administration.

[FR Doc. 97–28620 Filed 10–28–97; 8:45 am]

BILLING CODE 7590–01–P

NATIONAL CREDIT UNION

ADMINISTRATION

12 CFR Part 792

Production of Nonpublic Records and

Testimony of NCUA Employees in

Legal Proceedings

AGENCY: National Credit Union

Administration (NCUA).

ACTION: Final rule.

SUMMARY: The NCUA amends its rules

regarding subpoenas seeking nonpublic

records or the testimony of NCUA

employees. The rule provides

procedures, requirements and

information on how the NCUA will

handle these matters and expressly

prohibits any disclosure or testimony

except as provided by the rule. The rule

also amends the current rule regarding

release of NCUA records that are exempt

from disclosure under the Freedom of
56052 Federal Register / Vol. 62, No. 209 / Wednesday, October 29, 1997 / Rules and Regulations

Information Act to conform with the

procedures provided in this proposed

rule.

DATES: Effective October 29, 1997.

ADDRESSES: National Credit Union

Administration, 1775 Duke Street,

Alexandria, Virginia 22314–3428.

FOR FURTHER INFORMATION CONTACT:

Sheila Albin, Associate General

Counsel, or Allan Meltzer, Associate

General Counsel, (703) 518–6540.

SUPPLEMENTARY INFORMATION:

Background

The NCUA receives numerous

subpoenas and requests for NCUA

employees to provide evidence in

litigation. Typically, these subpoenas

are for NCUA records that are not

available to the public under the

Freedom of Information Act (FOIA).

Also, we receive numerous subpoenas

and requests for NCUA employees to

appear as witnesses in litigation in

conjunction with a request for

nonpublic records or to provide

testimony.

In recent years, the number of

requests has averaged about two or three

a month. Often, these subpoenas and

requests relate to litigation involving

federally-insured credit unions where

there is some issue for which one or

both of the parties want to use

nonpublic records, such as NCUA

examination reports, as evidence in the

case. In addition, the parties want to

have an NCUA employee, often an

examiner, testify to establish the

authenticity of the records or explain

the information contained in the

records. If we provide these records and

an examiner appears as a witness, this

will mean a significant disruption in the

examiner’s work schedule. In many

cases, parties want to use the examiner

as an expert witness on matters such as

the financial condition of the credit

union or other issues involving

opinions. Our experience has been that,

in many cases, the parties can deal with

these issues through the testimony of

other witnesses, including hiring their

own independent, expert witness, and

using the parties’ own records.

Proposed Rule

On April 16, 1997, the NCUA Board

issued a proposed rule to revise Part

792.62 FR 19941 (April 24, 1997). The

proposed rule was presented in a

question and answer format to promote

clarity and uses simple terms. It

continued the basic prohibition against

disclosure of nonpublic records or

testimony by NCUA employees without

obtaining permission. The proposed

rule also set out for the public what

information to submit and what factors

the NCUA will consider; and identified

filing times, fees, and potential

restrictions on disclosures or testimony.

The rule identified the proposed charges

for witnesses as the same as those

provided by the federal courts and the

fees related to production of records are

the same as those charged under FOIA.

Comments

In the Supplementary Information

section of the proposed rule, the NCUA

stated its interest in receiving comments

on the application of the proposed

regulation to former as well as current

employees, including its application to

proceedings to which NCUA is a party,

the exception from coverage for expert

testimony by former employees, and any

other factors that commenters believed

the NCUA should consider in addition

to those set out in §792.46 in reaching

a final determination. Four comment

letters were received: two from national

trade associations, one from a state

league and one from a federal credit

union.

Comments from the two national

trade associations indicated their

general support for more efficient

procedures and recognized the need to

protect the confidentiality of

examination-related records. Both trade

associations commented on NCUA’s

authority to prevent former employees

from testifying. One trade association

stated that it questioned NCUA’s

authority to prevent the testimony of

former employees unless it was clear

that nonpublic records such as

examination records would be divulged.

We first want to note that the rule is

substantially similar to regulations

issued by our sister financial regulatory

agencies that also restrict disclosure of

confidential information by former

employees or any person in possession

of such information. Federal Deposit

Insurance Corporation, 12 C.F.R. 309.7;

Office of Thrift Supervision, 12 C.F.R.

510.5; The Federal Reserve System, 12

C.F.R. 261.14. The focus of the rule is

on requiring that NCUA receive notice

of proposed testimony by a former

employee. The purpose is not to restrict

former employees but to protect the

release of confidential records and

information that may be in their

possession. Even when former

employees are not in possession of

nonpublic records, they may still have

substantial knowledge and information

that they recall regarding matters that

remain confidential. For this reason, the

NCUA wants an opportunity, in

advance of testimony being given, to

consult with former employees and any

party wishing to use their testimony in

order to protect the confidentiality of

that information by prohibiting or

limiting such testimony as appropriate.

Our view is that the definition of

employee makes clear that the NCUA’s

intent is to protect confidential

information. Former employees remain

prohibited from testifying about specific

matters for which they had

responsibility during their active

employment, unless permitted to testify

as provided in the rule. They would not,

however, be barred from appearing on

general matters or otherwise employing

their expertise as, for example, expert

witnesses. Finally, we want to highlight

the fact that the final rule, as in the

proposed rule, contains a prohibition

against release of nonpublic records by

any person who may have custody of

them.

Both trade associations also

commented on § 792.46 that sets out the

factors NCUA will consider in

reviewing a request. One commented

that the factors were too subjective. The

other commented that a better rationale

would be to rely on a legal basis such

as a statute or evidentiary privilege and

suggested using the standard used by

the Federal Reserve Board which is

whether the need for the information

outweighs the need for confidentiality

and whether disclosure is consistent

with Board policy and supervisory and

regulatory responsibilities. 12 CFR

261.13(c). We believe that the factors we

have listed include several examples of

established statutory and evidentiary

privileges and that, although phrased

differently, the factors in the final rule

set the same basic standard used by the

Federal Reserve Board but in simpler,

more specific language. We do not think

the factors are subjective but are

necessarily and appropriately flexible.

For example, the factor of whether a

request is burdensome must be

considered on a case-by-case.

Both trade associations commented

on the information that a written request

must include. One commented that it

made difficult for a litigant to know the

relevance of what is sought and offered

as an alternative that a requester only be

required to assert affirmatively that the

documents are relevant. We disagree.

The regulation is designed to protect

nonpublic records and the testimony of

employees, which by their nature, will

likely contain sensitve and confidential

information. Without a basis for

concluding that the records or testimony

are relevant in a particular matter, the

NCUA should not consider releasing

them. In addition, merely establishing

that records or testimony are relevant is

not sufficient. In order to be able to

consider the factors set out in § 792.46,
Federal Register / Vol. 62, No. 209 / Wednesday, October 29, 1997 / Rules and Regulations 56053

the NCUA must have information about

the nature of the proceedings. The

NCUA must know something about the

proceedings in order to consider

whether the litigant can obtain the

information or testimony from other

sources. For example, if litigants want

nonpublic records or the testimony of

NCUA employees merely to establish

the general financial condition of a

credit union, we think they should seek

financial records directly from the credit

union and hire their own expert witness

to testify about them. In response to the

comment that it may be difficult for a

requester to specify what records it

wants because he or she may not know

what is available, we think a requester

can phrase such a request in terms of

the facts or issues that are relevant in

much the same way that the Freedom of

Information Act requests or discovery

requests in civil litigation are prepared.

Thus, if a requester cannot identify

specific records, the description of the

facts or issues involved should be

sufficient to permit the NCUA to

identify responsive records.

With regard to application of the rule

to proceedings to which NCUA is a

party, there was one comment that

NCUA should have to abide by the same

rules of evidence as other litigants.

Another comment was to the effect that

the statement that NCUA will be subject

to applicable rules of civil procedure

when it is a party to a proceeding

should be more conspiculously placed.

This statement appears in the definition

of ‘‘legal proceedings’’ and, we believe,

states clearly that NCUA will be subject

to the applicable rules of procedure

when it is a party. As a matter of

drafting, we believe that it is

appropriately placed in the definition

section. That same definition also states

clearly that, the rule will still apply to

the testimony of former employees even

when the NCUA is a party to a

proceeding. Unless the NCUA receives

notice as provided under the rule, it

may not otherwise receive notice of a

former employee’s testimony even

though NCUA is a party to a proceeding.

This is because a former employee may

otherwise be contacted for testimony in

the form of declarations, affidavits,

statements or interviews, which could

involve the former employee’s revealing

confidential information without any

prior notice to NCUA of the nature of

the testimony. For that reason, the rule

will still apply to former employees

when NCUA is a party to a proceeding.

Obviously, where NCUA is a party to a

proceeding, it will be in a position to

receive notice of any requests for

records or the testimony of current

employees.

Comments from the state league and

one federal credit union generally were

supportive of the proposed regulation

but indicated some concern that the

regulation should not be used to deny

access to records that should be made

available. The NCUA reiterates its

position stated when it issued the

proposed regulation. The final rule is

essentially procedural, not substantive.

It does not create a right to obtain

records or the testimony of an NCUA

employee nor does it create any

additional right or privilege not already

available to NCUA to deny such a

request.

Final Rule

The final rule is the same as the

proposed rule. It solves some problems

that have arisen in the past. It should

eliminate or reduce eleventh hour

requests. Also, by centralizing the

service of subpoenas and the

determination of the NCUA’s response,

it should eliminate attempts to serve

subpoenas or present requests for

disclosure of nonpublic records to field

staff and regional offices. The

procedures and criteria will ensure a

more efficient use of NCUA resources,

minimize the possibility of involving

the NCUA in issues unrelated to its

responsibilities, promote uniformity in

responding to such requests and

subpoenas and maintain the impartiality

of NCUA between private litigants. The

final rule will serve NCUA’s interest in

protecting sensitive, confidential and

privileged information and records

generated by its supervisory and

regulatory work.

The NCUA reiterates its position that,

in issuing this regulation, it is not

making any waiver of its sovereign

immunity. For reference, the NCUA

notes that, in addition to the foregoing,

a discussion of the legal authority for

issuance of this regulation is set out in

the Supplemental Information

accompanying the publication of the

proposed regulation. 62 FR 19941 (April

24, 1997).

Regulatory Procedures

Regulatory Flexibility Act

The Regulatory Flexibility Act

requires the NCUA to prepare an

analysis to describe any significant

economic impact any proposed

regulation may have on a substantial

number of small credit unions, meaning

those under $1 million in assets. The

NCUA Board has determined and

certifies that the proposed rule, if

adopted, will not have a significant

economic impact on a substantial

number of small credit unions. The

reasons for this determination are that

the copying and witness fees to be

charged to person and entities

submitting requests under the regulation

are not large and will not create a

financial burden. The proposed rule

will not create any significant demand

for legal, accounting, or consulting

expenditures. Accordingly, the NCUA

Board has determined that a Regulatory

Flexibility Analysis is not required.

Paperwork Reduction Act

The NCUA submitted a copy of the

proposed rule to the Office of

Management and Budget (OMB) for its

review. OMB received no comments on

the proposed rule. Under the Paperwork

Reduction Act of 1995, no persons are

required to respond to a collection of

information unless it displays a valid

OMB control number. OMB has

assigned 31330146 as the control

number that will be displayed in the

table at 12 CFR Part 795.

Executive Order 12612

Executive Order 12612 requires

NCUA to consider the effect of its

actions on state interests. This final rule

is essentially of a procedural nature

only governing release of NCUA’s own

nonpublic records and the appearance

of NCUA employees in legal

proceedings. The NCUA has determined

that the final rule does not constitute a

significant regulatory action for

purposes of the Executive Order.

Small Business Regulatory Enforcement

Fairness Act

The Small Business Regulatory

Enforcement Fairness Act of 1996

(SBREFA) (Pub. L. 104–121) provides

generally for congressional review of

agency rules. The reporting requirement

is triggered when a final rule is issued.

The rule was submitted to OMB for

determination of whether this final rule

constitutes a major rule as defined

under the statute. A major rule is one

that OMB finds has resulted in or is

likely to result in: (1) An annual effect

on the economy of $100 million or

more; (2) a major increase in costs or

prices for consumers, individual,

industries, federal, state, or local

government agencies, or geographic

regions; or (3) significant adverse effects

on competition, employment,

investment, productivity, innovation, or

on the ability of the United States based

enterprises to compete with foreignbased enterprises in domestic and

export markets. OMB has determined

that this is not a major rule.
56054 Federal Register / Vol. 62, No. 209 / Wednesday, October 29, 1997 / Rules and Regulations

List of Subjects in 12 CFR Part 792

Administrative practice and

procedure, Credit unions, Confidential

business information, Freedom of

Information Act, Government

employees, Reporting and

recordkeeping requirement, Subpoenas.

By the National Credit Union

Administration Board on October 22, 1997.

Hattie Ulan,

Acting Secretary of the Board.

For the reasons set forth in the

preamble, NCUA proposes to amend 12

CFR part 792 as set forth below:

PART 792—[AMENDED]

1. The authority citation for part 792

is revised to read as follows:

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

12 U.S.C. 1752a(d), 1766, 1789, 1795f; E.O.

12600, 52 FR 23781, 3 CFR, 1987 Comp., p.

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

Comp., p. 333.

2. Amend §792.4 to remove paragraph

(b)(3) and revise paragraph (a) to read as

follows:

§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

§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.

§792.41 When does this subpart apply?

This subpart applies if you want to

obtain nonpublic records or testimony

of an NCUA employee for legal

proceedings. It doesn’t apply to the

release of records under the Freedom of

Information Act (FOIA), 5 U.S.C. 552, or

the Privacy Act, 5 U.S.C. 552a, or the

release of records to federal or state

investigatory agencies under

§792.4(b)(2).

§ 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
Federal Register / Vol. 62, No. 209 / Wednesday, October 29, 1997 / Rules and Regulations 56055

responsible for those determinations

that would otherwise be made by the

General Counsel.

§ 792.43 What must my written request

contain?

Your written request for records or

testimony must include:

(a) The caption of the legal

proceeding, docket number, and name

of the court or other authority involved.

(b) A copy of the complaint or

equivalent document setting forth the

assertions in the case and any other

pleading or document necessary to

show relevance.

(c) A list of categories of records

sought, a detailed description of how

the information sought is relevant to the

issues in the legal proceeding, and a

specific description of the substance of

the testimony or records sought.

(d) A statement as to how the need for

the information outweighs the need to

maintain the confidentiality of the

information and outweighs the burden

on the NCUA to produce the records or

provide testimony.

(e) A statement indicating that the

information sought is not available from

another source, such as a credit union’s

own books and records, other persons or

entities, or the testimony of someone

other than an NCUA employee, for

example, retained experts.

(f) A description of all prior decisions,

orders, or pending motions in the case

that bear upon the relevance of the

records or testimony you want.

(g) The name, address, and telephone

number of counsel to each party in the

case.

(h) An estimate of the amount of time

you anticipate that you and other parties

will need with each NCUA employee for

interviews, depositions, or testifying.

§ 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.

§ 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.

§ 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

§ 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.

§ 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, § 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
56056 Federal Register / Vol. 62, No. 209 / Wednesday, October 29, 1997 / Rules and Regulations

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.

§ 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.

§ 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 §792.3, the NCUA regulations

implementing the provisions of the

Freedom of Information Act. For

example, this means records created in

connection with NCUA’s examination

and supervision of insured credit

unions, including examination reports,

internal memoranda, and

correspondence, and, also, records

created in connection with NCUA’s

enforcement and investigatory

responsibilities.

Subpoena means any order, subpoena

for records or other tangible things or for

testimony, summons, notice or legal

process issued in a legal proceeding.

Testimony means any written or oral

statements made by an individual in

connection with a legal proceeding

including personal appearances in court

or at depositions, interviews in person

or by telephone, responses to written

interrogatories or other written

statements such as reports, declarations,

affidavits, or certifications or any

response involving more than the

delivery of records.

[FR Doc. 97–28585 Filed 10–28–97; 8:45 am]

BILLING CODE 7535–01–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. 97–NM–84–AD; Amendment

39–10178; AD 97–06–07 R1]

RIN 2120–AA64

Airworthiness Directives; Dornier

Model 328–100 Series Airplanes

Equipped With Burns Aerospace

Corporation Passenger Seats

AGENCY: Federal Aviation

Administration, DOT.

ACTION: Final rule; request for

comments.

SUMMARY: This amendment revises an

existing airworthiness directive (AD),

applicable to certain Dornier Model

328–100 series airplanes, that currently

requires modification of the restraining

systems of certain passenger seats by

replacing anchor point fasteners with

fasteners that are able to withstand

required 16g load conditions. That AD

was prompted by a report indicating

that the restraining systems on these

seats failed to meet 16g test load

requirements during dynamic testing.

The actions specified by that AD are

intended to prevent the fasteners from

failing, which could result in release of

the seat restraint and consequent injury

to passengers. This amendment revises

the applicability of the existing AD to

specify serial numbers of the affected

passenger seats.

DATES: Effective November 13, 1997.

The incorporation by reference of

Dornier Service Bulletin SB–328–25–

114, Revision 1, dated April 17, 1997, as

listed in the regulations, is approved by

the Director of the Federal Register as of

November 13, 1997.

The incorporation by reference of

Dornier Service Bulletin SB–328–25–

114, dated July 10, 1995, as listed in the

regulations, was approved previously by

the Director of the Federal Register as of

April 18, 1997 (62 FR 12081, March 14,

1997).

Comments for inclusion in the Rules

Docket must be received on or before

November 28, 1997.

ADDRESSES: Submit comments in

triplicate to the Federal Aviation

Administration (FAA), Transport

Airplane Directorate, ANM–103,

Attention: Rules Docket No. 97–NM–

84–AD, 1601 Lind Avenue, SW.,

Renton, Washington 98055–4056.

The service information referenced in

this AD may be obtained from Dornier

Luftfahrt GmbH, P.O. Box 1103, D–

82230 Wessling, Germany. This

information may be examined at the

FAA, Transport Airplane Directorate,

1601 Lind Avenue, SW., Renton,

Washington; or at the Office of the

Federal Register, 800 North Capitol

Street, NW., suite 700, Washington, DC.

FOR FURTHER INFORMATION CONTACT:

Connie Beane, Aerospace Engineer,

Standardization Branch, ANM–113,

FAA, Transport Airplane Directorate,

1601 Lind Avenue, SW., Renton,

Washington 98055–4056; telephone

(425) 227–2796; fax (425) 227–1149.

SUPPLEMENTARY INFORMATION: On March

6, 1997, the FAA issued AD 97–06–07,

amendment 39–9964 (62 FR 12081,

March 14, 1997), applicable to certain

Dornier Model 328–100 series airplanes,

to require modification of the

restraining systems on certain passenger

seats by replacing the anchor point

fasteners with new fasteners that are

able to withstand the required 16g load

conditions. That action was prompted

by a report indicating that the

restraining systems on these seats failed

to meet 16g test load requirements

during dynamic testing. The

requirements of that AD are intended to

prevent the fasteners from failing, which