I

106TH CONGRESS

1ST SESSION H. R. 174

To amend the Federal Deposit Insurance Act and the Federal Credit Union

Act to safeguard confidential banking and credit union information,

and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

JANUARY 6, 1999

Mr. MCCOLLUM (for himself, Mr. LEACH, Mr. BEREUTER, Mr. BAKER, Mr.

ROYCE, Mr. ACKERMAN, Mr. METCALF, Mr. PAUL, Mr. COOK, Mr. HILL

of Montana, Mr. JONES of North Carolina, and Mr. EHRLICH) introduced

the following bill; which was referred to the Committee on Banking and

Financial Services

A BILL

To amend the Federal Deposit Insurance Act and the Federal Credit Union Act to safeguard confidential banking

and credit union information, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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.....................................................................

(Original Signature of Member)

106TH CONGRESS

1ST SESSION H. R. 

IN THE HOUSE OF REPRESENTATIVES

Mr. MCCOLLUM introduced the following bill; which was referred to the

Committee on 

A BILL

To amend the Federal Deposit Insurance Act and the Federal Credit Union Act to safeguard confidential banking

and credit union information, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Bank Examination Re5 port Protection Act of 1999’’.
2

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1 SEC. 501. AMENDMENT TO THE FEDERAL DEPOSIT INSUR2 ANCE ACT.

3 The Federal Deposit Insurance Act (12 U.S.C. 1811

4 et seq.) is amended by adding at the end the following

5 new section:

6 ‘‘SEC. 45. BANK SUPERVISORY PRIVILEGE.

7 ‘‘(a) DEFINITIONS.—For purposes of this section, the

8 following definitions shall apply:

9 ‘‘(1) DEPOSITORY INSTITUTION.—The term ‘de10 pository institution’ includes—

11 ‘‘(A) any institution which is treated in the

12 same manner as an insured depository institu13 tion under paragraph (3), (4), (5), or (9) of

14 section 8(b); and

15 ‘‘(B) any subsidiary or other affiliate of an

16 insured depository institution or an institution

17 described in subparagraph (A).

18 ‘‘(2) SUPERVISORY PROCESS.—The term ‘su19 pervisory process’ means any activity engaged in by

20 a Federal banking agency to carry out the official

21 responsibilities of the agency with regard to the reg22 ulation or supervision of depository institutions.

23 ‘‘(3) CONFIDENTIAL SUPERVISORY INFORMA24 TION.—Subject to paragraph (4), the term ‘con25 fidential supervisory information’ means any of the

26 following information, or any portion of any such in-
3

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1 formation, which is treated as, or considered to be,

2 confidential information by a Federal banking agen3 cy, regardless of the medium in which the informa4 tion is conveyed or stored:

5 ‘‘(A) Any report of examination, inspec6 tion, visitation, or investigation, and informa7 tion prepared or collected by a Federal banking

8 agency in connection with the supervisory proc9 ess, including any computer file, work paper, or

10 similar document.

11 ‘‘(B) Any correspondence of communica12 tion from a Federal banking agency to a deposi13 tory institution as part of an examination, in14 spection, visitation, or investigation by a Fed15 eral banking agency.

16 ‘‘(C) Any correspondence, communication,

17 or document, including any compliance and

18 other reports, created by a depository institu19 tion in response to any request, inquiry, or di20 rective from a Federal banking agency in con21 nection with any examination, inspection, visita22 tion, or investigation and provided to a Federal

23 banking agency.

24 ‘‘(D) Any record of a Federal banking

25 agency to the extent it contains information de-
4

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1 rived from any report, correspondence, commu2 nication or other information described in sub3 paragraph (A), (B), or (C).

4 ‘‘(4) ORDINARY BUSINESS RECORDS EX5 CLUDED.—The term ‘confidential supervisory infor6 mation’ shall not include any book or record in the

7 possession of the depository institution routinely pre8 pared by the depository institution and maintained

9 in the ordinary course of business or any informa10 tion required to be made publicly available by any

11 Federal law or regulation.

12 ‘‘(b) BANK SUPERVISORY PRIVILEGE.—

13 ‘‘(1) PRIVILEGE ESTABLISHED.—

14 ‘‘(A) IN GENERAL.—All confidential super15 visory information shall be the property of the

16 Federal banking agency that created or re17 quested the information and shall be privileged

18 from disclosure to any other person.

19 ‘‘(B) PROHIBITION ON UNAUTHORIZED

20 DISCLOSURES.—No person in possession of con21 fidential supervisory information may disclose

22 such information, in whole or in part, without

23 the prior authorization of the Federal banking

24 agency that created or requested the informa25 tion, except for a disclosure made in published
5

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1 statistical material that does not disclose, either

2 directly or when used in conjunction with pub3 licly available information, the affairs of any

4 person.

5 ‘‘(C) AGENCY WAIVER.—The Federal

6 banking agency may waive, in whole or in part,

7 in the discretion of the agency, any privilege es8 tablished under this paragraph.

9 ‘‘(2) EXCEPTION.—No provision of paragraph

10 (1) shall be construed as preventing access to con11 fidential supervisory information by duly authorized

12 committees of the United States Congress or the

13 Comptroller General of the United States.

14 ‘‘(c) TREATMENT OF STATE AND FOREIGN SUPER15 VISORY INFORMATION.—In any proceeding before a court

16 of the United States, in which a person seeks to compel

17 production or disclosure by a State bank supervisor, for18 eign bank regulatory or supervisory authority, Federal

19 banking agency, or other person, of information or a docu20 ment prepared or collected by a State bank supervisor or

21 foreign bank regulatory or supervisory authority that

22 would, had they been prepared or collected by a Federal

23 banking agency, be confidential supervisory information

24 for purposes of this section, the information or document

25 shall be privileged to the same extent that the information
6

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1 and documents of Federal banking agencies are privileged

2 under this Act.

3 ‘‘(d) OTHER PRIVILEGES NOT WAIVED BY DISCLO4 SURE TO BANKING AGENCY.—The submission by a depos5 itory institution of any information to a Federal banking

6 agency, a State bank supervisor, or a foreign banking au7 thority for any purpose in the course of the supervisory

8 process of such agency or supervisor shall not be construed

9 as waiving, destroying, or otherwise affecting any privilege

10 such institution may claim with respect to such informa11 tion under Federal or State law.

12 ‘‘(e) DISCOVERY AND DISCLOSURE OF INFORMA13 TION.—

14 ‘‘(1) INFORMATION AVAILABLE ONLY FROM

15 BANKING AGENCY.—

16 ‘‘(A) IN GENERAL.—A person seeking dis17 covery or disclosure, in whole or in part, of con18 fidential supervisory information may not seek

19 to obtain such information through subpoena,

20 discovery procedures, or other process from any

21 person, except that such information may be

22 sought in accordance with this section from the

23 Federal banking agency that created or re24 quested the information.
7

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1 ‘‘(B) REQUESTS SUBMITTED TO BANKING

2 AGENCY.—Any request for discovery or disclo3 sure of confidential supervisory information

4 shall be made to the Federal banking agency

5 that created or requested the information,

6 which shall determine within a reasonable time

7 period whether to disclose such information

8 pursuant to procedures and criteria established

9 in regulations.

10 ‘‘(2) EXCLUSIVE FEDERAL COURT JURISDIC11 TION OVER DISPUTES.—

12 ‘‘(A) IN GENERAL.—Federal courts shall

13 have exclusive jurisdiction over actions or pro14 ceedings in which any party seeks to compel

15 disclosure of confidential supervisory informa16 tion.

17 ‘‘(B) JUDICIAL REVIEW.—Judicial review

18 of the final action of a Federal banking agency

19 with regard to the disposition of a request for

20 confidential supervisory information shall be be21 fore a district court of the United States of

22 competent jurisdiction, subject to chapter 7 of

23 part I of title 5, United States Code.

24 ‘‘(C) RIGHT TO APPEAL.—Any court order

25 that compels production of confidential super-
8

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1 visory information may be immediately appealed

2 by the Federal banking agency and the order

3 compelling production shall be automatically

4 stayed, pending the outcome of such appeal.

5 ‘‘(f) SUBPOENAS.—

6 ‘‘(1) AUTHORITY TO INTERVENE.—In the case

7 of any action or proceeding to compel compliance

8 with a subpoena, order, discovery request, or other

9 judicial or administrative process with respect to any

10 confidential supervisory information relating to any

11 depository institution, a Federal banking agency and

12 the depository institution may intervene in such ac13 tion or proceeding for the purpose of—

14 ‘‘(A) enforcing the limitations established

15 in paragraph (1) of subsections (b) and (e);

16 ‘‘(B) seeking the withdrawal of any com17 pulsory process with respect to such informa18 tion; and

19 ‘‘(C) registering appropriate objections

20 with respect to the action or proceeding to the

21 extent the action or proceeding relates to or in22 volves such information.

23 ‘‘(2) RIGHT TO APPEAL.—Any court order that

24 compels production of confidential supervisory infor25 mation may be immediately appealed by the Federal
9

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1 banking agency and the order compelling production

2 shall be automatically stayed, pending the outcome

3 of such appeal.

4 ‘‘(g) REGULATIONS.—

5 ‘‘(1) AUTHORITY TO PRESCRIBE.—Each Fed6 eral banking agency may prescribe such regulations

7 as the agency considers to be appropriate, after con8 sultation with the other Federal banking agencies

9 and the National Credit Union Administration

10 Board, to carry out the purposes of this section.

11 ‘‘(2) AUTHORITY TO REQUIRE NOTICE.—Any

12 regulations prescribed by a Federal banking agency

13 under paragraph (1) may require any person in pos14 session of confidential supervisory information to no15 tify the Federal banking agency whenever the person

16 is served with a subpoena, order, discovery request,

17 or other judicial or administrative process requiring

18 the personal attendance of such person as a witness

19 or requiring the production of such information in

20 any proceeding.

21 ‘‘(h) ACCESS IN ACCORDANCE WITH REGULATIONS

22 AND ORDERS.—Notwithstanding any other provision of

23 this section, the Federal banking agency may, without

24 waiving any privilege, authorize access to confidential su25 pervisory information for any appropriate governmental,
10

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1 law enforcement, or public purpose in accordance with

2 agency regulations or orders.’’.

3 SEC. 502. AMENDMENT TO THE FEDERAL CREDIT UNION

4 ACT.

5 Title II of the Federal Credit Union Act (12 U.S.C.

6 1781 et seq.) is amended by adding at the end the follow7 ing new section:

8 ‘‘SEC. 215. CREDIT UNION SUPERVISORY PRIVILEGE.

9 ‘‘(a) DEFINITIONS.—For purposes of this section, the

10 following definitions shall apply:

11 ‘‘(1) SUPERVISORY PROCESS.—The term ‘su12 pervisory process’ means any activity engaged in by

13 the Administration to carry out the official respon14 sibilities of the Administration with regard to the

15 regulation or supervision of credit unions.

16 ‘‘(2) CONFIDENTIAL SUPERVISORY INFORMA17 TION.—The term ‘confidential supervisory informa18 tion’ means any of the following information, or any

19 portion of any such information, which is treated as,

20 or considered to be, confidential information by the

21 Administration, regardless of the medium in which

22 the information is conveyed or stored:

23 ‘‘(A) Any report of examination, inspec24 tion, visitation, or investigation, and informa25 tion prepared or collected by the Administration
11

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1 in connection with the supervisory process, in2 cluding any computer file, work paper, or simi3 lar document.

4 ‘‘(B) Any correspondence or communica5 tion from the Administration to a credit union

6 arising from or relating to an examination, in7 spection, visitation, or investigation by the Ad8 ministration.

9 ‘‘(C) Any correspondence, communication,

10 or document, including any compliance and

11 other reports, created by a credit union in re12 sponse to any request, inquiry, or directive from

13 the Administration in connection with any ex14 amination, inspection, visitation, or investiga15 tion and provided to the Administration, other

16 than any book or record in the possession of the

17 credit union routinely prepared by the credit

18 union and maintained in the ordinary course of

19 business or any information required to be

20 made publicly available by any Federal law or

21 regulation.

22 ‘‘(D) Any record of the Administration to

23 the extent it contains information derived from

24 any report, correspondence, communication or
12

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1 other information described in subparagraph

2 (A), (B), or (C).

3 ‘‘(b) CREDIT UNION SUPERVISORY PRIVILEGE.—

4 ‘‘(1) PRIVILEGE ESTABLISHED.—

5 ‘‘(A) IN GENERAL.—All confidential super6 visory information shall be the property of the

7 Administration and shall be privileged from dis8 closure to any other person.

9 ‘‘(B) PROHIBITION ON UNAUTHORIZED

10 DISCLOSURES.—No person in possession of con11 fidential supervisory information may disclose

12 such information, in whole or in part, without

13 the prior authorization of the Administration,

14 except for a disclosure made in published statis15 tical material that does not disclose, either di16 rectly or when used in conjunction with publicly

17 available information, the affairs of any person.

18 ‘‘(C) AGENCY WAIVERS.—The Board may

19 waive, in whole or in part, in the discretion of

20 the Board, any privilege established under this

21 paragraph.

22 ‘‘(2) EXCEPTION.—No provision of paragraph

23 (1) shall be construed as preventing access to con24 fidential supervisory information by duly authorized
13

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1 committees of the United States Congress or the

2 Comptroller General of the United States.

3 ‘‘(c) OTHER PRIVILEGES NOT WAIVED BY DISCLO4 SURE TO ADMINISTRATION.—The submission by a credit

5 union of any information to the Administration or a State

6 credit union supervisor for any purpose in the course of

7 the supervisory process of the Administration or such su8 pervisor shall not be construed as waiving, destroying, or

9 otherwise affecting any privilege such institution may

10 claim with respect to such information under Federal or

11 State law.

12 ‘‘(d) DISCOVERY AND DISCLOSURE OF INFORMA13 TION.—

14 ‘‘(1) INFORMATION AVAILABLE ONLY FROM AD15 MINISTRATION.—

16 ‘‘(A) IN GENERAL.—A person seeking dis17 covery or disclosure, in whole or in part, of con18 fidential supervisory information may not seek

19 to obtain such information through subpoena,

20 discovery procedures, or other process from any

21 person, except that such information may be

22 sought in accordance with this section from the

23 Administration.

24 ‘‘(B) REQUEST SUBMITTED TO ADMINIS25 TRATION.—Any request for discovery or disclo-
14

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1 sure of confidential supervisory information

2 shall be made in the Administration, which

3 shall determine within a reasonable time period

4 whether to disclose such information pursuant

5 to procedures and criteria established in regula6 tions.

7 ‘‘(2) EXCLUSIVE FEDERAL COURT JURISDIC8 TION OVER DISPUTES.—

9 ‘‘(A) IN GENERAL.—Federal courts shall

10 have exclusive jurisdiction over actions or pro11 ceedings in which any party seeks to compel

12 disclosure of confidential supervisory informa13 tion.

14 ‘‘(B) JUDICIAL REVIEW.—Judicial review

15 of the final action of the Administration with

16 regard to the disposition of a request for con17 fidential supervisory information shall be before

18 a district court of the United States of com19 petent jurisdiction, subject to chapter 7 of part

20 I of title 5, United States Code.

21 ‘‘(C) RIGHT TO APPEAL.—Any court order

22 that compels production of confidential super23 visory information may be immediately appealed

24 by the Administration and the order compelling
15

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1 production shall be automatically stayed, pend2 ing the outcome of such appeal.

3 ‘‘(e) SUBPOENAS.—

4 ‘‘(1) AUTHORITY TO INTERVENE.—In the case

5 of any action or proceeding to compel compliance

6 with a subpoena, order, discover request, or other ju7 dicial or administrative process with respect to any

8 confidential supervisory information relating to any

9 credit union, the Administration and the credit

10 union may intervene in such action or proceeding for

11 the purpose of—

12 ‘‘(A) enforcing the limitations established

13 in paragraph (1) of subsections (b) and (d);

14 ‘‘(B) seeking the withdrawal of any com15 pulsory process with respect to such informa16 tion; and

17 ‘‘(C) registering appropriate objections

18 with respect to the action or proceeding to the

19 extent the action or proceeding relates to or in20 volves such information.

21 ‘‘(2) RIGHT TO APPEAL.—Any court order that

22 compels production of confidential supervisory infor23 mation may be immediately appealed by the Admin24 istration and the order compelling production shall
16

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1 be automatically stayed, pending the outcome of

2 such appeal.

3 ‘‘(f) REGULATIONS.—

4 ‘‘(1) AUTHORITY TO PRESCRIBE.—The Board

5 may prescribe such regulations as the Board consid6 ers to be appropriate, after consultation with the

7 Federal banking agencies (as defined in section 3 of

8 the Federal Deposit Insurance Act), to carry out the

9 purposes of this section.

10 ‘‘(2) AUTHORITY TO REQUIRE NOTICE.—Any

11 regulations prescribed by the Administration under

12 paragraph (1) may require any person in possession

13 of confidential supervisory information to notify the

14 Administration whenever the person is served with a

15 subpoena, order, discovery request, or other judicial

16 or administrative process requiring the personal at17 tendance of such person as a witness or requiring

18 the production of such information in any proceed19 ing.

20 ‘‘(g) ACCESS IN ACCORDANCE WITH REGULATIONS

21 AND ORDERS.—Notwithstanding any other provision of

22 this section, the Administration may, without waiving any

23 privilege, authorize access to confidential supervisory in24 formation for any appropriate governmental, law enforce-
17

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1 ment, or public purpose in accordance with agency regula2 tions or orders.’’.

Æ