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2013 Regulatory Burden Notice with Request for Comment

The following (attached and pasted below) is sent on behalf of Douglas R. Stark, President and CEO, Farm Credit Services of America.
Association Administration PO Box 2409 Omaha, Nebraska 68103-2409 (800) 320-0283 FAX (402) 348-3444

November 15, 2013

Barry F. Mardock, Deputy Director
Office of Regulatory Policy
Farm Credit Administration
1501 Farm Credit Drive
McLean, VA 22102-5090

Subject: Regulatory Burden [HM-13-9], RIN: 3052-AC88, 78 FR 42893

Dear Mr. Mardock:

Farm Credit Services of America appreciates the opportunity to comment on a regulation imposing burdensome requirements in the production of documents and testimony during litigation [64 FR 43049, Aug. 9, 1999], pursuant to the request for comment concerning Regulatory Burden, published in the July 18, 2013 Federal Register (78 Fed Reg 42893).

The relevant language under Subpart G – Releasing Information, provides:

618.8330 Production of documents and testimony during litigation.
(a) If your bank or association is a party to litigation with a borrower or a successor in interest, you or your directors, officers, or employees may disclose confidential information about that borrower or the successor in interest during the litigation.
(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 (emphasis supplied).

Discovery, the process through which parties involved in litigation obtain information from each other in order to prepare for trial or enforce a judgment, requires the timely production of documents. If the judge of the respective court is unavailable to sign a lawful order, 618.8330 does not allow a designated officer of the court (clerk of the court, or attorney) to sign the order.

At times, in order to comply with the current FCA regulation, we are required to hire an attorney to defend the position that we are unable to produce documents under a subpoena without a judge's signature. This is costly and unnecessary. The regulation should be updated to permit a judge to designate an alternative.

Again, thank you for this opportunity.


Douglas R. Stark
President and Chief Executive Officer
Farm Credit Services of America

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