DEPARTMENT OF THE TREASURY

Office of Thrift Supervision

12 CFR Part 510

[No. 93Ä148]

RIN 1550ÄAA66

Release of Unpublished Information

AGENCY: Office of Thrift Supervision, Treasury.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Office of Thrift Supervision (OTS) proposes to amend its
regulations pertaining to release of unpublished OTS information. OTS
proposes, in certain circumstances, to make records available that are exempt
from disclosure under the Freedom of Information Act.

The purpose of this proposed rule is to provide an orderly mechanism for
expeditiously processing requests from the public for unpublished information
while preserving the OTS's need to maintain confidentiality. The proposed
regulation applies to record and testimony requests. The records covered
include those created or obtained in connection with OTS's performance of its
statutory responsibilities, such as supervision, regulation, examination, and
law enforcement duties. The testimony covered includes requests for current
and former OTS employees, officers, and agents (and from former employees,
officers and agents of OTS's predecessor, the Federal Home Loan Bank Board) to
testify in judicial and administrative proceedings, including depositions and
informal interviews, about information obtained in their official OTS
capacities. The proposed regulation does not apply to requests for records
that are required to be disclosed under FOIA.

The records generated by the OTS's supervisory, regulatory examination and
enforcement activities are generally confidential. The FOIA specifically
exempts from disclosure OTS's records related to the examination, operations,
and conditions of savings associations, records containing confidential
commercial or financial information, and records compiled for law enforcement
purposes. Such OTS records include, among other things, examination and
related reports, information relating to the business operations and finances
of individual savings associations, savings and loan holding companies, other
affiliates, and their customers, and information compiled in connection with
OTS's enforcement investigations. Nevertheless, OTS receives numerous requests
from the public each year for these types of records and testimony.

The proposed amendments are based upon OTS's experience during the last three
years in responding to the large volume of requests by the public for such OTS
information. They describe in detail the procedures that requesters must
follow in seeking the release of unpublished information from OTS. The
proposed amendments further describe the criteria on which OTS will evaluate
requests for unpublished information. The proposed amendments also provide for
reimbursement to the OTS for producing records and witnesses.

DATES: Comments on the proposed rule must be received on or before February 7,
1994.

ADDRESSES: Comments should be sent to: Director, Information Services
Division, Public Affairs, Office of Thrift Supervision, 1700 G Street, NW.,
Washington, DC 20552. Attention Docket No. 93Ä148. These submissions may be
hand-delivered to 1700 G Street, NW., from 9 a.m. to 5 p.m. on business days;
they may be sent by facsimile transmission to FAX number (202) 906Ä7755.
Submissions must be received by 5 p.m. on the day they are due in order to be
considered by the OTS. Late-filed, misaddressed, or misidentified submissions
will not be considered in this rulemaking. Comments will be available for
inspection at 1700 G Street, NW., from 1 p.m. until 4 p.m. on business days.
Visitors will be escorted to and from the Public Reading Room at established
intervals.

      FOR FURTHER INFORMATION CONTACT: J. Amanda Machen, Trial Attorney, (202)
906Ä7398, Litigation Division; Donna Miller, Program Manager, (202) 906Ä7488,
Affiliates Programs; Office of Thrift Supervision, 1700 G Street NW.,
Washington, DC 20552.

SUPPLEMENTARY INFORMATION: The proposed amendments would completely revise 12
CFR 510.5, and while they incorporate most of the existing regulations, the
OTS requests public comment on any portion of the proposal.

I. Background

The principal mission of the OTS is the regulation, examination and
supervision of savings associations. The OTS's supervision has always been
performed in an atmosphere of statutorily sanctioned confidentiality. For
example, when Congress enacted FOIA (5 U.S.C. 552), it specifically exempted
from disclosure under FOIA records relating to examinations, operations, and
conditions of financial institutions. This exemption both (1) protects the
security of financial institutions by withholding from the public reports that
contain frank evaluations of an institution's stability and (2) promotes
cooperation and frank communication between financial institution employees
and their regulators. Also, the records generated by the OTS's supervisory
activities frequently contain confidential information exempt from disclosure
under FOIA relating to the business operations and finances of individual
savings associations and their customers. These records are created by or for
OTS and remain the property of OTS, regardless of where such reports or
information are physically located. The courts have recognized the need for
confidentiality in the performance of supervisory and regulatory activities of
financial institution regulators. See, e.g., In Re: Subpoena Served Upon The
Comptroller of the Currency, 967 F.2d 630 (DC Cir. 1992).

In considering requests for disclosure of unpublished information, the OTS
must carefully weigh the need demonstrated by a member of the public for
access to OTS's records and testimony against the public interest in
maintaining the confidentiality of the unpublished information. Among the
factors OTS will consider in weighing the public interest in confidentiality
is the impact on OTS's supervisory, examination, and enforcement
responsibilities of releasing such information. It must balance these
considerations with the requester's interest in obtaining such information.
Therefore, the proposed regulation requires that release of unpublished
records and testimony will be based, among other things, upon a showing by the
requester that the information requested is highly relevant to the purpose for
which it is sought, that the information is not available from other sources,
and that the requester's need for the information clearly outweighs the need
to maintain the confidentiality of the information and the burden the OTS
would incur in assembling and producing such information.

The OTS's authority to govern the custody and use of its records and the
testimony of its personnel derives from 5 U.S.C. 301 and 12 U.S.C. 1462a.
Section 301 authorizes an agency head to prescribe regulations governing the
conduct of its employees and the custody, use and preservation of its records.
Section 1462a(b)(2) authorizes the Director of OTS to prescribe such
regulations as he may determine to be necessary for carrying out his
responsibilities.

The proposed amendment in no way affects the rights and procedures governing
access to records that are required to be disclosed under FOIA. The proposed
amendment incorporates much of existing  510.5, and proposes the procedures
for the public to request release of unpublished OTS information.

In addition, the proposed amendment grants, for the first time, authority to
savings associations to release their examination reports and related
supervisory correspondence to their holding companies, and similarly
authorizes holding companies to release their examination reports and related
supervisory correspondence to their subsidiary savings associations. The OTS
is proposing this expanded authority because it believes that the exchange of
examination reports between savings associations and their holding companies
will promote the safety and soundness of the thrift industry.

The proposal is described section by section below.

Section 510.5(a)

Paragraph (a) identifies the types of requests covered under this rule. This
paragraph applies to requests from the public for unpublished OTS information;
unpublished information includes records and testimony. The covered records
include those created or obtained in connection with OTS's performance of its
responsibilities such as its supervisory, regulatory, examination, and
enforcement-related duties. The covered testimony includes that of present and
former employees, officers, and agents for information obtained in their
official OTS capacities. The paragraph does not apply to records required to
be released under FOIA.

Section 510.5(b)

Paragraph (b) sets out the purpose of this regulation. The purpose of this
proposed rule is to provide an orderly mechanism for expeditiously processing
requests for OTS's unpublished information while preserving OTS's need to
maintain confidentiality of certain information.

Section 510.5(c)

Paragraph (c) describes the procedures that must be followed when making a
request for unpublished OTS information. Paragraph (1) describes general
procedures that apply to all requests by members of the public for unpublished
information (i.e., records and testimony). It sets forth the types of
information that must be contained in such requests, including a showing by
the requester that the information sought is highly relevant to the purpose
for which it is sought. In addition, the requester must demonstrate that the
information requested is not available from another source and that the need
for such information clearly outweighs the need to maintain the
confidentiality of OTS unpublished information and the burden on OTS in
producing the information, such as the disruption to OTS's supervisory and
other responsibilities that is occasioned by reviewing a large volume of
records and loss to the OTS of the services of employees while they testify at
depositions or hearings. This paragraph also requires a requester who seeks a
response in less than 30 days to include an explanation of why the request was
not submitted earlier and why the expedited handling of the request is
necessary.

Paragraphs (2) and (3) set forth additional requirements for certain types of
requests. Paragraph (2) pertains to requests for records. It requires that
requesters of unpublished OTS records specifically list the types and
categories of records sought and the relevant time period. Paragraph (3)
describes special requirements for requests for testimony from OTS employees.
This paragraph states that requests for testimony by OTS employees or former
employees must specifically describe the substance of the testimony sought and
show a compelling need for the testimony. Such requests shall also include a
demonstration that the information sought is not available from any other
source. This paragraph also prohibits OTS employees from testifying as expert
witnesses for private parties, requests that litigants anticipate their need
for OTS testimony in time for such testimony to be taken in deposition form,
and states that OTS shall specify the scope of any authorized testimony.

Paragraph (4) specifies that unpublished OTS information made available to
savings associations and state and Federal agencies shall remain the property
of the OTS and shall not be disclosed to any other party without OTS
authorization. In addition, the paragraph authorizes a savings association to
provide a copy of its examination report and related supervisory
correspondence to parent holding companies. Similarly, a savings and loan
holding company is authorized to provide a copy of its examination report and
related supervisory correspondence to its subsidiary savings association(s)
without further authorization from the OTS. The OTS is specifically seeking
comment on disclosure of examination reports and related correspondence
between thrifts and their holding companies.

Paragraph (5) provides that requests for unpublished OTS information shall be
sent to the OTS at 1700 G Street, NW., Washington, DC 20552, to the attention
of the Secretary.

Section 510.5(d)

Paragraph (d) describes the process by which OTS will consider requests for
unpublished information, both records and testimony, and the factors OTS may
consider in denying such requests.

Section 510.5(e)

Paragraph (e) sets forth restrictions on the dissemination of unpublished OTS
information. Paragraph (1) prohibits any current or former OTS employee from
disclosing any unpublished OTS information to anyone other than an employee or
agent of the OTS properly entitled to such information for the performance of
their official duties.

Paragraph (2) requires any person with unpublished OTS information who is
served with a subpoena, order, or other process requiring their attendance as
a witness or for production of records, to advise the issuer of such notice of
the substance of this regulation. In addition, this paragraph prohibits any
person with unpublished OTS information from disclosure of such information in
response to a subpoena without prior OTS authorization.

Paragraph (3) provides that if a person is required to appear in response to a
subpoena or other legal process and is asked to disclose unpublished OTS
information, that person shall decline to produce such information or give any
testimony concerning such information. Upon receiving such a request or
subpoena to testify, the individual is required to contact promptly the OTS
Litigation Division.

Paragraph (4) specifies that the possession of unpublished OTS information by
savings associations, their holding companies, and state and Federal agencies
shall not waive any privilege the OTS might have to such information.

Section 510.5(f)

Paragraph (f) imposes requirements to protect the confidentiality of
unpublished OTS information that is made available to requesters. Paragraph
(1) provides that the release of records will normally be conditioned upon
entry of an acceptable protective order by the court or administrative
tribunal presiding in a particular case or, in non-litigated matters, upon
execution of an acceptable confidentiality agreement. Paragraph (2) states
that the OTS may condition its authorization of deposition testimony on an
agreement of the parties that the transcript of the testimony shall remain
confidential. This paragraph also requires the party who requested the
testimony to furnish the OTS with a copy of the transcript of the testimony at
its expense.

Section 510.5(g)

Paragraph (g) sets forth procedures designed to limit the burden on the OTS in
connection with releasing records. Paragraph (1) states that requesters who
require authenticated records should request certified copies at least 30 days
prior to the date the records are needed. Paragraph (2) specifies the
responsibility of litigants to share and safeguard OTS records. This paragraph
provides that the party to whom records are released has the responsibility of
notifying the other parties, providing them with copies of the records,
retrieving any records from the court's file when they are no longer required,
and returning such records to OTS.

Section 510.5(h)

Paragraph (h) sets forth the fees for records searches, records copying and
records certification. Specifically, it provides that the fees charged to the
requester of OTS records shall be the fees set forth in the Treasury
Department regulations, 31 CFR 1.7. Paragraph (2) requires that witness fees
and allowances will be paid by the requester of testimony of current OTS
employees in accordance with 28 U.S.C. 1821.

II. Comment Solicitation

Comments are sought on all aspects of the proposed regulation.

III. Paperwork Reduction Act

The reporting requirements contained in this proposed rule have been submitted
to the Office of Management and Budget for review in accordance with the
Paperwork Reduction Act of 1980 (44 U.S.C. 3504(h)). Comments on the
collection of information should be sent to the Office of Management and
Budget, Paperwork Reduction Project (1550), Washington, D.C. 20503, with
copies to the Office of Thrift Supervision, 1700 G Street, NW., Washington,
D.C. 20552.

The reporting requirements in this proposed rule are found in 12 CFR
510.5(c)Ä(g). The information is needed by the OTS to provide a more efficient
mechanism for expeditiously processing requests for unpublished information.

Estimated number of respondents: 500

Estimated average annual burden per respondent: 5 hours

Estimated annual frequency of responses: 1

Estimated total annual reporting burden: 2500

IV. Regulatory Flexibility Act

Pursuant to section 605(b) of the Regulatory Flexibility Act (Pub. L. 96Ä354,
5 U.S.C. 601), it is certified that this regulation will not have a
significant economic impact on a substantial number of small savings
associations, small service corporations, or other small entities. This
regulation simply sets forth the procedures utilized by the OTS in its
handling of requests for unpublished OTS information and imposes fees in
connection with such requests. Accordingly, a regulatory flexibility analysis
is not required.

V. Executive Order 12866

      The OTS has determined that this regulation does not constitute a
"significant regulatory action'' for purposes of Executive Order 12866.

List of Subjects in 12 CFR Part 510

Administrative practice and procedure.

Accordingly, the Office of Thrift Supervision hereby proposes to amend part
510, subchapter A, chapter V, title 12 of the Code of Federal Regulations as
set forth below.

SUBCHAPTER A ORGANIZATION AND PROCEDURES

PART 510 MISCELLANEOUS ORGANIZATIONAL REGULATIONS

1. The authority citation for part 510 is revised to read as follows:

Authority: 5 U.S.C. 301; 12 U.S.C. 1462a, 1463, 1464.

2. Section 510.5 is revised to read as follows:

 510.5 Release of unpublished OTS information.

(a) Scope (1) This section applies to requests by the public for unpublished
OTS information, such as requests for records or testimony arising in lawsuits
in which OTS is not a party.

(2) Unpublished OTS information includes records created or obtained in
connection with OTS's performance of its responsibilities, such as records
concerning supervision, regulation, and examination of savings associations,
their holding companies, and affiliates, and records compiled in connection
with OTS's enforcement responsibilities. Unpublished OTS information also
includes information that current and former employees, officers, and agents
obtained in their official capacities. Examples of unpublished information
include:

(i) Information from a current or former employee, officer, or agent of the
OTS (or the Federal Home Loan Bank Board, the predecessor agency of the OTS),
by testimony or informal interview, that was acquired in the course of
performing official duties or because of the employee's, officer's or agent's
official status;

(ii) Reports of examination, supervisory correspondence, internal agency
memoranda and investigatory files compiled in connection with an
investigation, whether such records are in the possession of the OTS or some
other individual or entity; and

(iii) Unpublished OTS records obtained by third parties, including other
government agencies, in the course of their official duties.

(3) This section does not apply to:

(i) Requests for records or testimony in proceedings in which the OTS is a
party;

(ii) Requests for information by other government agencies; and

(iii) Requests for records that are required to be disclosed under the Freedom
of Information Act, see 5 USC 552, and 31 CFR 1.1Ä1.6.

(b) Purpose The purposes of this section are:

(1) To afford an orderly mechanism for OTS to expeditiously process requests
for unpublished OTS information and, where appropriate, for OTS to assert
evidentiary privileges in litigation;

(2) To balance the need for confidentiality of unpublished OTS information
with the private party's interest in obtaining disclosure of that information;

(3) To ensure that the time of OTS employees is utilized in the most efficient
manner consistent with the OTS's statutory mission;

(4) To prevent undue burdens on the OTS;

(5) To limit the expenditure of public funds for private purposes; and

(6) To maintain the impartiality of the OTS among private litigants.

(c) Procedure (1) Requests for records and testimony in general. A request for
unpublished OTS information must be in writing, furnish the caption of the
lawsuit if the request arises in the course of litigation, and support the
requester's claim that the information sought is highly relevant to the
purpose for which it is sought. In demonstrating that the information is
highly relevant, the requester must explain, in as detailed a description as
is necessary under the circumstances, how the requested OTS information
relates to the issues in the case or the matter.

(i) For requests arising in lawsuits, the submission also must include:

(A) A copy of the complaint or equivalent document in the case and any other
pleadings necessary to show relevance;

(B) A description of any prior decisions or pending motions in the case that
may bear on the asserted relevance of the information being sought from the
OTS; and

(C) The names, addresses and phone numbers of counsel to all other parties in
the case.

(ii) In all instances, in addition to demonstrating that the information
sought is highly relevant to the purpose for which it is sought, the requester
must:

(A) Demonstrate that the information sought is not available from any other
source; and

(B) Demonstrate that the need for the information clearly outweighs the need
to maintain the confidentiality of the OTS information and the burden on the
OTS to produce the information.

      (iii) If a request seeks a response in fewer than 30 days, it must
include an explanation of why the requester was unable to submit the request
earlier and why expediting the request is required.

(2) Additional provisions relating to requests for records. In addition to the
requirements of paragraph (c)(1) of this section, the following provisions
apply to requests for disclosure of records.

(i) A request for records must list the categories of records sought and
describe the specific information sought, including the relevant time period.

(ii) When the OTS believes that another party to the lawsuit has a claim of
privilege regarding the information in the records and the records are in the
possession of that party, such as reports prepared by a savings association's
attorneys that are shared with OTS, the OTS may respond to the request by
authorizing that party to release the records pursuant to an appropriate
confidentiality order rather than by releasing the records directly to the
requesting party. This will enable the party possessing the records to argue
the issue of privilege to the appropriate court.

(3) Additional provisions relating to requests for testimony from OTS
employees. In addition to the requirements of paragraph (c)(1) of this
section, the provisions in paragraphs (c)(3)(i) through (iv) of this section
apply to requests that current or former OTS employees be authorized to give
testimony.

(i) Requests for testimony by OTS employees or former employees must
specifically describe the substance of the testimony sought and show a
compelling need for the testimony. A showing of compelling need should include
a demonstration that the requested information is not available from any other
source, such as the books and records of other persons or entities, OTS
records that have been or might be released, or the testimony of other non-OTS
persons, including retained experts.

(ii) OTS employees will not be authorized to provide expert or opinion
testimony for private parties.

(iii) OTS expects litigants to anticipate their need for OTS testimony in
sufficient time to request and obtain that testimony in deposition form. A
request for testimony at a trial or hearing may not be granted unless the
requester shows that properly developed deposition testimony could not be used
or would not be adequate at the trial or hearing.

(iv) The OTS shall specify the scope of any authorized testimony and may take
steps to ensure that the scope of testimony taken adheres to the scope
authorized. Parties to the case who did not join in the request and who wish
to question the witness beyond the authorized scope should request expanded
authorization pursuant to this regulation. The OTS will attempt to render
decisions on such requests in an expedited manner.

(4) Information available to savings associations, holding companies and state
and Federal agencies. (i) A copy of each report of the regular examination of
a savings association, savings and loan holding company, or affiliate is made
available by the appropriate Regional Office to the institution or entity
examined.

(ii) Any subsidiary savings association of a savings and loan holding company
may reproduce and furnish a copy of any report of examination and related
supervisory correspondence of the savings association to its parent holding
company(ies) without prior approval of the OTS. Any savings and loan holding
company may reproduce and furnish a copy of any report of examination and
related supervisory correspondence to its subsidiary savings association(s)
without prior approval of the OTS. This paragraph does not require such
disclosure by a parent savings and loan holding company or subsidiary savings
association.

(iii) Reports of examination and other information relating to state-chartered
savings associations and affiliates are made available, upon request, by the
OTS to the state governmental authority having general supervision of such
state-chartered savings associations.

(iv) Reports of examination and other information may be made available by the
OTS to other agencies of the United States, a state, or to the Federal Home
Loan Banks, for use where necessary in the performance of their official
duties.

(v) All reports or other information made available to savings associations,
holding companies, affiliates, or other governmental agencies shall remain the
property of the OTS and, except as permitted by this section or otherwise by
OTS, no person, company, agency, or authority to whom the information is made
available, or any officer, director, employee or agent thereof, shall disclose
any such information except published statistical material that would not
disclose the identity of any individual or corporation.

(5) Where to submit requests. In all matters covered by this section,
notification of the issuance of subpoenas or compulsory process and requests
for records or testimony covered by this section must be sent to the OTS at
1700 G Street, NW., Washington, DC 20552, to the attention of the Secretary,
and should be labelled "Request for Release of Unpublished Information Under
Section 510.5.'' Requesters may furnish copies of the request or subpoenas
simultaneously to the appropriate OTS Regional Office, but the furnishing of
such copies does not constitute service on the OTS.

      (d) Consideration of requests (1) In general. The OTS will generally
process requests in the order in which they are received. OTS will endeavor to
respond to requests within 30 days, but this may vary depending on the scope
and precision of the request. The OTS will weigh requests for processing in
less than 30 days against the burden to the OTS of expedited processing and
the unfairness to other parties whose pending requests may be delayed.

(2) Consultation with requester. The OTS may consult with the requester to:

(i) Refine and limit the scope of the request so as to reduce the burden and
expense on the OTS; or

(ii) Obtain additional information necessary for the OTS to make an informed
determination on the request. To the extent necessary to reach an informed
determination on the request, the OTS may inquire into the circumstances of
the underlying matter and rely on sources of information beyond the requester,
including other interested parties.

(3) Final determinations. Final determinations on requests will be made by the
Director or his delegate. All such determinations are the sole discretion of
the Director or his delegate. Requesters will be notified in writing of the
disposition of the request.

(4) Denial of requests. (i) The OTS may deny requests for records or testimony
that seek information that OTS deems to be:

(A) Not highly relevant;

(B) Privileged;

(C) Available from other sources; or

(D) Information that should not be disclosed for reasons that warrant
restriction of discovery under the Federal Rules of Civil Procedure.

(ii) The OTS may also deny a records or testimony request when it considers
production of the information to be overly burdensome or contrary to the
public interest.

(5) Confidentiality orders and agreements. As is set forth in paragraph (f) of
this section, the OTS may condition release of information on the entry by the
relevant tribunal of an order satisfactory to OTS or, in a non-litigated
matter, the execution of a confidentiality agreement that limits access of
third parties to the unpublished OTS information. It shall be the duty of the
requesting party to obtain such an order or to execute a confidentiality
agreement.

(e) Parties with access to OTS information; restriction on dissemination (1)
Current and former employees. Except as otherwise authorized by this section
or otherwise by the OTS, no current or former employee, officer or agent of
the OTS or a predecessor agency shall disclose or permit the disclosure of any
unpublished information of the OTS to anyone (other than an employee, officer
or agent of the OTS properly entitled to such information for the performance
of their official duties), whether by giving out or furnishing such
information or a copy thereof or by allowing any person to inspect, examine,
or copy such information or copy thereof, or otherwise.

(2) Duty of person served. If any person, whether or not a current or former
employee, officer or agent of the OTS, has information of the OTS that may not
be disclosed under the regulations of the OTS or other applicable law, and in
connection therewith is served with a subpoena, order, or other process
requiring personal attendance as a witness or production of records or
information in any proceeding, that person shall promptly advise the OTS of
such service or request for information. Upon such notice the OTS will take
appropriate action to advise the court or tribunal that issued the process and
the attorney for the party at whose instance the process was issued, if known,
of the substance of this section. Such notice to the OTS shall be made by
contacting the Litigation Division, Office of Chief Counsel, Office of Thrift
Supervision, 1700 G Street NW., Washington, DC 20552. As provided in paragraph
(e)(3) of this section, a person so served with process may not disclose OTS
information without OTS authorization. To obtain OTS authorization, a request
must be sent to OTS in Washington, DC, in accordance with paragraph (c) of
this section.

(3) Appearance by person served. Except as the OTS has authorized disclosure
of the relevant information, or except as authorized by law, any person who
has information of the OTS that may not be disclosed under this section and is
required to respond to a subpoena or other legal process shall attend at the
time and place therein mentioned and respectfully decline to produce such
records or give any testimony with respect thereto, basing such refusal on
this part. If, notwithstanding, the court or other body orders the disclosure
of such records or the giving of such testimony, the person having such
information of the OTS shall continue respectfully to decline to produce such
information and shall promptly advise the Litigation Division of the Chief
Counsel's Office, Office of Thrift Supervision. Upon such notice the OTS will
take appropriate action to advise the court or tribunal which issued the
order, of the substance of this section.

      (4) Non-waiver of privilege. The possession by any entity or individual
described in paragraph (c)(4) of this section of OTS records covered by this
section shall not waive any privilege of the OTS or the OTS's right to
supervise the further dissemination of these records.

(f) Orders and agreements protecting the confidentiality of unpublished OTS
information (1) Records. Unless otherwise permitted by OTS, release of records
authorized pursuant to this section will be conditioned by the OTS upon entry
of an acceptable protective order by the court or administrative tribunal
presiding in the particular case, or, in non-litigated matters, upon execution
of an acceptable confidentiality agreement. In cases where protective orders
have already been entered, the OTS reserves the right to condition approval
for release of information upon the inclusion of additional or amended
provisions.

(2) Testimony. The OTS may condition its authorization of deposition testimony
on an agreement of the parties that the transcript of the testimony will be
kept under seal, or will be made available only to the parties, the court and
the jury, except to the extent that the OTS may allow use of the transcript in
related litigation. The party who requested the testimony shall, at its
expense, furnish to the OTS a copy of the transcript of testimony of the OTS
employee or former employee.

(g) Limitation of burden on the OTS in connection with released records (1)
Authentication for use as evidence. The OTS will authenticate released records
to facilitate their use as evidence. Requesters who require authenticated
records should request certified copies at least 30 days prior to the date
they will be needed. The request should be sent to the OTS Secretary and shall
identify the records, giving the office or record depository where they are
located (if known) and include copies of the records and payment of the
certification fee.

(2) Responsibility of litigants to share released records. The party who has
sought and obtained OTS records has the responsibility of:

(i) Notifying other parties to the case of the release and, after entry of a
protective order, of providing copies of the records to the other parties who
are subject to the protective order; and

(ii) Retrieving any records from the court's file as soon as the records are
no longer required by the court and returning them to OTS. Where a party may
be involved in related litigation, the OTS may, upon a request made to it
pursuant to this section, authorize such party to transfer the records for use
in that related case.

(h) Fees (1) Fees for records searches, copying and certifications. Requesters
shall be charged fees in accordance with Treasury Department regulations, 31
CFR 1.7. With certain exceptions, the regulations in 31 CFR 1.7 provide for
recovery of the full direct costs of searching, reviewing, certifying and
duplicating the records sought. An estimate of the statement of charges will
be sent to requesters, and fees shall be remitted by check payable to the OTS
prior to receipt of the requested records. Where it deems appropriate, the OTS
may contract with commercial copying concerns to copy the records, with the
cost billed to the requester.

(2) Witness fees and allowances. (i) Litigants whose requests for testimony of
current OTS employees are approved, shall, upon completion of the testimonial
appearance, promptly tender a check payable to the OTS for the witness fees
and allowances in accordance with 28 U.S.C. 1821.

(ii) All litigants whose requests for testimony of former OTS employees are
approved, shall tender witness fees and allowances to the witness in
accordance with 28 U.S.C. 1821.

Dated: August 5, 1993.

By the Office of Thrift Supervision.

Jonathan L. Fiechter,

Acting Director.

[FR Doc. 93Ä30009 Filed 12Ä8Ä93; 8:45 am]

BILLING CODE 6720Ä01ÄP