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2013 Regulatory Burden Notice with Request for Comment


November 14, 2013

Mr. Barry F. Mardock

Deputy Director
Office of Regulatory Policy
Farm Credit Administration
1501 Farm Credit Drive
McLean, Virginia  22102-5090

Re:       Regulatory Burden Comment Letter

Dear Mr. Mardock:

 Thank you for the opportunity to provide comments and feedback to the Farm Credit Administration on the issue of regulatory burden. 

AgSouth Farm Credit, ACA, would require some minor revisions to regulation 12 CFR 618.8330(b) related to the production of documents and testimony during litigation.  That portion of the regulation presently reads as follows:

(b) If the Government or your bank or association is not a party to litigation, you or your directors, officers, or employees may produce confidential documents or testimony only if a court of competent jurisdiction issues a lawful order signed by a judge. [underlined emphasis added]

 The issue for AgSouth is that in both of our chartered states of Georgia and South Carolina, attorneys may issue subpoenas, acting as officers of the Court (see O.C.G.A. 9-11-34(c) and SCRCP Rule 45).  As such, in every instance in which we are served with a request to produce documents – such as in a divorce proceeding for one of our customers, issues involving estates and the like, the Association must either seek out our borrower and obtain written consent to comply; file an objection to the subpoena so as to not be in contempt; or try to negotiate with the requesting party to have them take the matter before a judge to get the order re-issued.

Each of the alternatives proves to be time-consuming and sometimes costly for the Association.  We recognize that the intent of the regulation is protect borrower privacy and that the current form of the regulation was likely written at a time when subpoenas were still issued by judges who would theoretically review the request and ensure that it was appropriate.  As the volume of court cases increased over time, most states have now moved that subpoena function to the attorneys in the case for efficiency.  Each state has rules in place that require counsel to maintain the confidentiality and integrity of the information sought and we perceive no discernible risk to the borrower over having a judge issue the order.

Accordingly, we would request that the regulation be modified by simply modifying the text as follows:

(b) If the Government or your bank or association is not a party to litigation, you or your directors, officers, or employees may produce confidential documents or testimony only if a court of competent jurisdiction issues a lawful order signed by a judge or duly authorized officer of the court. [addition underlined]

Once again, we appreciate the agency’s willingness to evaluate regulatory burden and seek out ways to help System institutions operate more efficiently for the benefit of our collective shareholders.

Respectfully submitted,

 AgSouth Farm Credit, ACA
Wesley D. Sutton
General Counsel