[Federal Register Volume 65, Number 91 (Wednesday, May 10, 2000)]
[Proposed Rules]
[Pages 30037-30043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-11592]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Part 403

RIN 0960-AE95


Testimony by Employees and the Production of Records in Legal 
Proceedings

AGENCY: Social Security Administration.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Social Security Administration (SSA) is proposing to 
establish procedures governing testimony by SSA employees and the 
production of official records and information in legal proceedings to 
which SSA is not a party. This proposed rule provides procedures, 
requirements, and information on how SSA will handle these matters and 
expressly prohibits any production or testimony except as approved by 
the Commissioner of Social Security or as Federal law otherwise 
provides. This proposed rule will conserve and ensure more efficient 
use of SSA's resources in meeting the Agency's mission, promote 
consistency in decisionmaking, minimize the possibility of involving 
SSA in issues not related to its mission, maintain SSA's impartiality, 
protect sensitive and confidential information and the deliberative 
processes of SSA, and enhance SSA's ability to respond efficiently to 
requests for records, information, or testimony in a legal proceeding.

DATES: Your comments will be considered if we receive them no later 
than July 10, 2000.

ADDRESSES: Submit comments in writing to the Commissioner of Social 
Security, P.O. Box 17703, Baltimore, MD 21235-7703; send by telefax to 
(410) 966-2830; send by E-mail to <a href="/cdn-cgi/l/email-protection#fd8f989a88919c899492938ebd8e8e9cd39a928b"><span class="__cf_email__" data-cfemail="d3a1b6b4a6bfb2a7babcbda093a0a0b2fdb4bca5">[email protected]</span></a>; or deliver to 
the Office of Process and Innovation Management, Social Security 
Administration, L2109 West Low Rise Building, 6401 Security Boulevard, 
Baltimore, MD 21235-6401, between 8:00 a.m. and 4:30 p.m. on regular 
business days. Comments received may be inspected during these same 
hours by making arrangements with the contact person shown below.
    Electronic Version: The electronic file of this document is 
available on the date of publication in the Federal Register on the 
Internet site for the Government Printing Office at: http://www.access.gpo.gov/sudocs/aces/aces140.html. It is also available on 
the Internet site for SSA at: http://www.ssa.gov.

[[Page 30038]]


FOR FURTHER INFORMATION CONTACT: Brad Howard, General Attorney, Office 
of the General Counsel, Room 617 Altmeyer Building, 6401 Security 
Boulevard, Baltimore, MD 21235-6401, (410) 966-1817, for information 
about this rule. For information on eligibility or claiming benefits, 
call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-
0778.

SUPPLEMENTARY INFORMATION:

Clarity of This Regulation

    Executive Order 12866 and the President's memorandum of June 1, 
1998, require each agency to write all rules in plain language. In 
addition to your substantive comments on this proposed rule, we invite 
your comments on how to make this proposed rule easier to understand. 
For example:
    <bullet> Have we organized the material to suit your needs?
    <bullet> Are the requirements in the rule clearly stated?
    <bullet> Does the rule contain technical language or jargon that 
isn't clear?
    <bullet> Would a different format (grouping and order of sections, 
use of headings, paragraphing) make the rule easier to understand?
    <bullet> Would more (but shorter) sections be better?
    <bullet> Could we improve clarity by adding tables, lists, or 
diagrams?
    <bullet> What else could we do to make the rule easier to 
understand?

Background

    Until March 31, 1995, SSA was part of the Department of Health and 
Human Services (DHHS). SSA followed the DHHS regulations at 45 CFR part 
2 regarding requests for records, information, or testimony in legal 
proceedings where the United States was not a party. The Social 
Security Independence and Program Improvements Act of 1994 (SSIPIA), 
Pub. L. 103-296, established SSA as an independent agency in the 
executive branch of the Federal government effective March 31, 1995, 
and vested general regulatory authority in the Commissioner of Social 
Security (the Commissioner). Under Sec. 106(b) of the SSIPIA, DHHS 
regulations in effect immediately before March 31, 1995, that relate to 
functions vested in the Commissioner by reason of SSA's independence, 
continue to apply to SSA until the Commissioner modifies, suspends, 
terminates, or repeals them. In this notice, we propose to establish a 
new part 403 of our regulations, which would set forth the SSA rules 
for responding to requests for information, records, or testimony in 
legal proceedings. Once these rules take effect, the DHHS regulations 
at 45 CFR part 2 will no longer apply to SSA.
    These rules, issued under the authority of 5 U.S.C. 301, are 
similar to rules issued by numerous government agencies and 
departments. Section 301 of Title 5, the ``housekeeping statute,'' 
authorizes the head of an executive agency to issue ``regulations for 
the government of his department, the conduct of its employees, the 
distribution and performance of its business and the custody, use, and 
preservation of its records, papers, and property.'' In United States 
ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), the Supreme Court upheld 
the authority of Federal agencies to establish procedures similar to 
those proposed here pursuant to Sec. 301. Federal courts have 
consistently held that a person seeking testimony or records from an 
agency must comply with the agency's ``Touhy regulation'' before 
seeking judicial enforcement of a subpoena. In addition, under section 
702(a)(5) of the Social Security Act, 42 U.S.C. 902(a)(5), the 
Commissioner has authority to promulgate regulations necessary to the 
efficient administration of SSA functions.

Explanation of Proposed Regulations

    SSA administers a wide variety of programs that affect almost 50 
million beneficiaries and the general public. SSA maintains records on 
virtually every individual in the United States. The documents that SSA 
obtains or generates and our employees' expertise frequently are sought 
for use in legal proceedings in which SSA is neither involved nor has 
an interest. Each year, SSA receives thousands of requests for records 
and testimony. This proposed rule establishes SSA policies and 
procedures applicable to requests for official Agency information, 
records, or testimony in legal proceedings.

Scope

    With some limited exceptions, this proposed rule would apply to all 
requests arising out of a legal proceeding for:
    (1) SSA information or records; or
    (2) Testimony from SSA employees concerning information acquired 
while performing official duties or because of the employees' official 
capacity.
    A request for both testimony and records or other information is 
treated as two separate requests--one for testimony and one for records 
or other information--because some procedures apply only to requests 
for testimony.
    This proposed rule applies to a broad range of legal proceedings. 
It adopts the definition of ``record'' found in SSA disclosure 
regulations; clarifies that ``testimony'' encompasses all types of 
sworn statements; and expands the definition of SSA ``employee'' to 
include past employees, persons acting on the Agency's behalf, and 
persons subject to the Agency's disclosure regulations.


    Note: These definitions do not expand the Federal Government's 
obligation to provide legal representation.


    The proposed rule explains that SSA employees may disclose records 
or other information only as permitted under the Agency's disclosure 
regulations and explains that SSA employees may provide testimony (even 
testimony related to records that the Agency may disclose) only with 
the Commissioner's explicit approval. The Commissioner may delegate 
this authority.
    This proposed rule would not apply to requests for testimony:
    <bullet> In an SSA administrative proceeding;
    <bullet> Related to a case to which SSA is a party;
    <bullet> From the United States Department of Justice;
    <bullet> In a criminal proceeding to which the United States is a 
party;
    <bullet> In a legal proceeding initiated by state or local 
authorities arising from an investigation or audit initiated by, or 
conducted in cooperation with, SSA's Office of the Inspector General;
    <bullet> From either house of Congress;
    <bullet> In a law enforcement proceeding related to threats or acts 
against SSA, its employees, or its operations; or
    <bullet> Where Federal law or regulations expressly require a 
Federal employee to provide testimony.
    These exceptions refine those listed in the DHHS regulations to 
focus more on specific SSA goals. For example, instead of the broad 
exceptions related to criminal or civil proceedings where the United 
States or any Federal agency is a party (45 CFR 2.1(d)(1)), we would 
provide more specific exceptions related to cases where SSA is a party, 
requests from the Department of Justice, and criminal proceedings to 
which the United States is a party. These changes address SSA's goals 
of full participation in cases when it is a party, and full cooperation 
and comity with the Agency's legal representatives (the Department of 
Justice). At the same time, the more narrowly tailored exceptions 
advance SSA goals of: (1) Not providing any unfair advantage to private 
litigants related to SSA testimony, and (2) making a full and fair 
evaluation of each applicant's need for testimony. Similarly, we have 
not included the exceptions found in the

[[Page 30039]]

DHHS regulations that concern DHHS agencies and employees, and we have 
clarified the relationship between this proposed rule and SSA's 
disclosure regulations (20 CFR parts 401 and 402) and added exceptions 
to enhance our ability to assist those protecting and furthering the 
interests of SSA.

Certification

    Because we can certify copies of records in SSA's possession, the 
Commissioner generally would not authorize testimony intended only to 
authenticate those records. We propose to adopt certification rules 
different from those in the DHHS regulations to explain that SSA would 
not certify copies of records that have been released previously or 
have been otherwise outside SSA's control.

Fees

    We charge a fee for production of records or information and 
certification. The fee schedules for these services are established in 
20 CFR 401.95, and 20 CFR 402.155-185, as appropriate. We propose to 
charge for testimony. These fees will be calculated to reimburse the 
Federal government for the full cost of providing testimony, such as, 
but not limited to, salary or wages of the witness for time needed to 
prepare for testimony, any necessary travel time, and the cost of 
travel and attendance at the legal proceeding.

Relation to SSA Disclosure Regulations (20 CFR Parts 401 and 402)

    The DHHS regulations at 45 CFR part 2 do not apply to matters 
covered in the SSA disclosure regulations at 20 CFR part 401. See 45 
CFR 2.1(d)(6). The proposed part 403 would apply to such matters to the 
extent necessary to ensure that requests for testimony related to 
records receive the same treatment as other requests for testimony and 
to provide notice to requesters or courts when current law prohibits 
the disclosure of a requested record.
    Nothing in this proposed rule affects the application of the rules 
in SSA's disclosure regulations. As provided in proposed Sec. 403.105, 
if you request records or information in any legal proceeding covered 
by this proposed rule, SSA employees will not disclose the requested 
records or information unless authorized by SSA disclosure regulations. 
If the disclosure is not authorized, the decision to deny the request 
would be made by the appropriate SSA official under the SSA disclosure 
regulations. However, if disclosure is not authorized and your request 
states that a response is due on a particular date, we would make every 
reasonable effort to provide you with the written notification 
described in proposed Sec. 403.145 on or before the specified date. We 
will also send you any notices required by part 401 or 402. If 
disclosure of records or information is authorized by the disclosure 
regulations but you request testimony concerning those matters, your 
request would be subject to the process for applying for testimony 
described in proposed Sec. Sec. 403.120 through 403.140. By focusing a 
requestor on the disclosure regulations (which usually require the 
consent of the individual to whom the requested record pertains) and 
the procedures for obtaining the Commissioner's permission for 
testimony, these regulations emphasize the most efficient means for 
obtaining information, records, or testimony.

Subpoenas Duces Tecum

    Under the DHHS regulations, subpoenas duces tecum were deemed to be 
requests for records under the Freedom of Information Act (FOIA), 5 
U.S.C. 552, and were to be processed under the DHHS FOIA regulations. 
See 45 CFR 2.5. SSA has concluded that a more useful approach given the 
nature of SSA's records and operations would be to treat subpoenas 
duces tecum as requests for records within the scope of this proposed 
rule. Accordingly, SSA would apply the procedures in this proposed rule 
in responding to such subpoenas duces tecum.

Procedures for Requesting Testimony

    In proposed Sec. 403.120, we explain the process for requesting 
testimony. We would change the procedures used under the DHHS 
regulations for requesting testimony from an SSA employee to 
standardize the procedures and to make them more administratively 
efficient.
    To obtain the testimony of an SSA employee in a legal proceeding, 
you must file a written application. As in the DHHS regulations, this 
proposed rule requires that the application set out the nature of the 
testimony sought, explain why the information is not available by other 
means, and explain why it is in SSA's interest to provide the 
testimony. In addition, this proposed rule requires you to explain in 
the application the relevance of the testimony to the issues involved 
in the legal proceeding and state the date and time when you need the 
testimony and the location where the testimony would be presented. 
Another change from the DHHS regulations would require you to submit 
the application for testimony to us at least 30 days in advance of the 
date when you need the testimony, or explain in your application why 
your application is not timely and why it is in SSA's interest to 
review the untimely application. Failure to submit a complete and 
timely application could result in the denial of the application or 
could cause delay in the decision on the application.
    Unlike the DHHS regulations, this proposed rule would establish a 
central address for all applications for testimony by SSA employees for 
use in legal proceedings. This proposed rule would require that all 
applications (except applications involving the Office of the Inspector 
General) be sent to our Office of the General Counsel in Baltimore, 
Maryland. By using a central location, we can issue quicker responses 
and handle applications more efficiently and consistently.

Deciding Whether To Approve an Application for Testimony--Factors 
We Consider

    Once we receive a complete application for testimony under this 
proposed rule, the Commissioner would consider whether to approve it. 
The Office of the General Counsel or another component of SSA may 
review your application. In consultation with these offices, the 
Commissioner would make a final decision on your application and notify 
you of that decision. See proposed Sec. 403.135. To decide whether to 
approve the application, and therefore to authorize an SSA employee to 
provide testimony, the Commissioner would consider a number of factors 
such as:
    <bullet> Whether providing the testimony would violate a statute, 
Executive Order, or regulation;
    <bullet> Whether providing the testimony would unduly expend for 
private purposes the resources of the United States (including the time 
of SSA employees otherwise needed for official duties);
    <bullet> Whether providing the testimony is in SSA's interest;
    <bullet> Whether providing the testimony is consistent with SSA's 
policy of impartiality among private litigants;
    <bullet> Whether providing the testimony will put confidential, 
sensitive, or privileged information at risk;
    <bullet> Whether the testimony is available in a less burdensome 
form or from another source;
    <bullet> Whether the testimony sought is limited to the purpose of 
the request;
    <bullet> Whether providing the testimony sought is necessary to 
prevent a miscarriage of justice or to preserve the rights of an 
accused individual to due process in a criminal proceeding;

[[Page 30040]]

    <bullet> Whether you previously have requested the same testimony 
in the same or a related proceeding;
    <bullet> Whether another government agency is involved in the 
proceeding; and
    <bullet> Whether you need the testimony to prevent fraud or similar 
misconduct.

See proposed Sec. 403.130.

    Under this proposed rule, if the Commissioner approves your 
application, the Commissioner decides the form by which SSA will 
provide the testimony. For example, if the Commissioner decides that 
SSA can meet your needs satisfactorily with a sworn written statement, 
he will not authorize oral testimony.

Procedures When the Commissioner Denies Your Application or Does 
Not Act by the Return Date Specified in the Application or When 
Disclosure Is Not Authorized

    Under the DHHS regulations, if the Agency head denied approval for 
an employee to comply with a subpoena for testimony, or did not act by 
the return date in the subpoena, the employee was to appear at the 
stated time and place unless advised by the Office of the General 
Counsel that responding to the subpoena would be inappropriate. The 
only actions the employee was authorized to take at this appearance 
were to provide a copy of the regulations and to respectfully decline 
to testify or produce any documents. See 45 CFR Sec. 2.4(b). Our 
experience suggests that under the prior procedures, SSA incurred the 
substantial cost of sending individuals to hearings, and that these 
appearances did not provide any significant service or information to 
the tribunal or the parties involved.
    Proposed Sec. 403.145 would provide that, in cases where SSA cannot 
respond to a request by the date specified in the application, SSA will 
make every reasonable effort to provide a statement to the requesting 
party and/or the court or other tribunal conducting the proceeding by 
the specified date. The statement would explain the following: 
compliance with the request is not authorized without the 
Commissioner's approval and approval has not yet been given; the 
requirements for obtaining approval; and, if the request complies with 
proposed Sec. 403.120, the estimated time necessary for reaching a 
decision. If 20 CFR part 401 or 402 does not authorize disclosure of 
the requested records or information, the statement would explain the 
requirements for disclosure. Generally, if a response to a request for 
information, records, or testimony is due before the conditions of this 
part or 20 CFR part 401 or 402 are met, no SSA employee would appear 
before the tribunal or the parties involved in the proceeding.

Waiving the Requirements of This Proposed Rule

    Under certain circumstances, this proposed rule would permit the 
Commissioner to grant an exception from any requirement related to your 
application for testimony. For example, proposed Sec. 403.120(b) 
provides that if you apply for testimony by an SSA employee, you must 
submit the application at least 30 days before the date the testimony 
is needed. If, however, the Commissioner believes that a waiver of this 
requirement would be in the interests of SSA or would be necessary to 
prevent a miscarriage of justice, an exception may be granted. In 
addition, SSA employees may resolve requests for information informally 
(as they currently do in the ordinary course of business) by writing 
letters to claimants or other members of the public explaining 
procedures or other matters encompassed by the Social Security Act. 
Such letters may include information about an individual, if that 
person has provided written consent to disclosure as required in 20 CFR 
part 401. Such informal activity is not a waiver of the procedures 
described in this proposed rule since it does not involve a sworn 
statement by an SSA employee, but is an alternative means of assisting 
a person without providing employee testimony.

Requests Involving the Office of the Inspector General

    This proposed rule provides that if you seek records or information 
of the Office of the Inspector General or the testimony of an employee 
of the Office of the Inspector General, the regulations in part 403 
apply with two exceptions. The Inspector General or his or her designee 
would make any determination that the Commissioner would make. A 
separate address is provided for requests for Office of the Inspector 
General records or information or applications for the testimony of an 
employee of the Office of the Inspector General.

Procedural Nature of the Regulations

    This proposed rule would be procedural, not substantive. 
Nevertheless, failure to comply with the procedures may be a basis for 
denying a request. This proposed rule does not create a right to obtain 
information, records, or the testimony of an SSA employee nor does it 
create any additional right or privilege not already available to SSA 
to deny such a request. Furthermore, this proposed rule creates no 
independent right of action against SSA or any of its employees.

Regulatory Procedures

Executive Order 12866

    We have consulted with the Office of Management and Budget (OMB) 
and determined that these rules do not meet the criteria for a 
significant regulatory action under Executive Order 12866. Thus, they 
were not subject to OMB review.

Regulatory Flexibility Act

    We certify that these proposed regulations will not have a 
significant economic impact on a substantial number of small entities. 
Therefore, a regulatory flexibility analysis as provided in the 
Regulatory Flexibility Act, as amended, is not required.

Paperwork Reduction Act

    There is a reporting requirement in section 403.120(a),(b), and 
(c), which establishes the requirements for applying for the testimony 
of an SSA employee. As required by 44 U.S.C. 3507(d), we have submitted 
a copy of this information collection requirement to the Office of 
Management and Budget (OMB) for its review. Organizations and 
individuals desiring to submit comments on these information collection 
requirements should direct them to the Office of Information and 
Regulatory Affairs, OMB, New Executive Office Building, Room 3208, 
Washington, D.C. 20503, Attention: Desk Officer for SSA.
    The public burden for this collection of information is estimated 
to average 30 minutes per application. This includes the time it will 
take to understand what is needed, gather the necessary facts, and 
provide the information. We expect that there will be approximately 40 
applicants for testimony each year. Therefore, the annual reporting 
burden is expected to be 20 hours. If you have any comments or 
suggestions on this estimate, write to the Social Security 
Administration, ATTN: Reports Clearance Officer, 1-A-21 Operations 
Building, Baltimore, MD 21235.
    SSA is soliciting comments from the public in order to:
    <bullet> Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
    <bullet> Evaluate the accuracy of the agency's estimate of the 
burden of the

[[Page 30041]]

proposed collection of information, including the validity of the 
methodology and assumptions used;
    <bullet> Enhance the quality, utility, and clarity of the 
information to be collected; and
    <bullet> Minimize the burden of the collection of information on 
those who are to respond including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques, or other forms of information technology (e.g., permitting 
electronic submission of responses).

(Catalog of Federal Domestic Assistance Program Nos. 93.773 
Medicare-Hospital Insurance; 93.774 Medicare-Supplementary Medical 
Insurance; 96.001 Social Security-Disability Insurance; 96.002 
Social Security-Retirement Insurance; 96.003 Special Benefits for 
Persons Aged 72 and Over; 96.004 Social Security-Survivors 
Insurance; 96.005 Special Benefits for Disabled Coal Miners; and 
96.006 Supplemental Security Income).

List of Subjects in 20 CFR Part 403

    Courts, Government employees.

    Dated: April 26, 2000.
Kenneth S. Apfel,
Commissioner of Social Security.
    For reasons set out in the preamble, Chapter III of Title 20 of the 
Code of Federal Regulations is amended by adding a new part 403 to read 
as follows:

PART 403--TESTIMONY BY EMPLOYEES AND THE PRODUCTION OF RECORDS AND 
INFORMATION IN LEGAL PROCEEDINGS

Sec.
403.100   When can an SSA employee testify or produce information or 
records in legal proceedings?
403.105   What is the relationship between this part and 20 CFR 
parts 401 and 402?
403.110   What special definitions apply to this part?
403.115   When does this part apply?
403.120   How must I request testimony?
403.125   How will requests for records, information, or testimony 
involving SSA's Office of the Inspector General be handled?
403.130   What factors may the Commissioner consider in determining 
whether SSA will grant my application for testimony?
403.135   What happens to my application for testimony?
403.140   If the Commissioner authorizes testimony, what will be the 
scope and form of that testimony?
403.145   What will SSA do if I have not satisfied the conditions in 
this part or in 20 CFR part 401 or 402?
403.150   Must I pay a fee if my request is granted?
403.155   Does SSA certify records?

    Authority: Secs. 702(a)(5) and 1106 of the Social Security Act, 
42 U.S.C. 902(a)(5) and 1306; 5 U.S.C. 301; 31 U.S.C. 9701.


Sec. 403.100  When can an SSA employee testify or produce information 
or records in legal proceedings?

    An SSA employee can testify concerning any function of SSA or any 
information or record created or acquired by SSA as a result of the 
discharge of its official duties in any legal proceeding covered by 
this part only with the prior authorization of the Commissioner. An SSA 
employee can provide records or other information in a legal proceeding 
covered by this part only to the extent that doing so is consistent 
with 20 CFR parts 401 and 402. A request for both testimony and records 
or other information is considered two separate requests--one for 
testimony and one for records or other information. SSA maintains a 
policy of strict impartiality with respect to private litigants and 
seeks to minimize the disruption of official duties.


Sec. 403.105  What is the relationship between this part and 20 CFR 
parts 401 and 402?

    (a) General. Disclosure of SSA's records and information contained 
in those records is governed by the regulations at 20 CFR parts 401 and 
402. SSA employees will not disclose records or information in any 
legal proceeding covered by this part except as permitted by 20 CFR 
parts 401 and 402.
    (b) Requests for information or records that do not include 
testimony. (1) If you do not request testimony, Sec. Sec. 403.120-
403.140 do not apply.
    (2) If 20 CFR part 401 or 402 permits disclosure to you of any 
requested record or information, we will make every reasonable effort 
to provide the disclosable information or record to you on or before 
the date specified in your request.
    (3) If neither 20 CFR part 401 nor 402 permits disclosure of 
information or a record you request, we will notify you as provided in 
Sec. 403.145. We will also send you any notices required by part 401 or 
402.


Sec. 403.110  What special definitions apply to this part?

    The following definitions apply:
    (a) Application means a written request for testimony that conforms 
to the requirements of Sec. 403.120.
    (b)(1) Employee includes--
    (i) Any person employed in any capacity by SSA, currently or in the 
past;
    (ii) Any person appointed by, or subject to the supervision, 
jurisdiction, or control of SSA, the Commissioner of Social Security, 
or any other SSA official, currently or in the past; and
    (iii) Any person who is not described elsewhere in this definition 
but whose disclosure of information is subject to the regulations at 20 
CFR part 401 currently or in the past.
    (2) For purposes of this paragraph (b), a person subject to SSA's 
jurisdiction or control includes any person hired as a contractor by 
SSA, any person performing services for SSA under an agreement (such as 
an officer or employee of a State agency involved in determining 
disability for SSA), and any consultant (including medical or 
vocational experts or medical services or consultative examination 
providers), contractor, or subcontractor of such person. Such a person 
would also include any person who has served or is serving in any 
advisory capacity, formal or informal.
    (3) For purposes of this paragraph (b), a person employed by SSA in 
the past is considered an employee only when the matter about which the 
person would testify is one in which he or she was personally involved 
while at SSA; where the matter concerns official information that the 
employee acquired while working, such as sensitive or confidential 
agency information; where the person purports to speak for SSA; or 
where significant SSA resources would be required to prepare the person 
to testify. Such a person would not be considered an employee when the 
person will rely only on expertise or general knowledge he or she 
acquired while working at SSA.
    (c) Commissioner means the Commissioner of Social Security or his 
or her designee(s).
    (d) Legal proceeding includes any pretrial, trial, and post-trial 
stage of any existing or reasonably anticipated judicial or 
administrative action, hearing, investigation, or similar proceeding 
before a court, commission, board, agency, or other tribunal, authority 
or entity, foreign or domestic. Legal proceeding also includes any 
deposition or other pretrial proceeding, including a formal or informal 
request for testimony by an attorney or any other person.
    (e) Record has the same meaning as ``record'' in 20 CFR 402.30.
    (f) Request means any attempt to obtain the production, disclosure, 
or release of information, records, or the testimony of an SSA 
employee, including any order, subpoena, or other command issued in a 
legal proceeding as well as any informal or other attempt (by any 
method) by a party or a party's representative.

[[Page 30042]]

    (g) SSA means the Social Security Administration.
    (h) Testimony includes any sworn statement (oral or written), 
including (but not limited to)--
    (1) Any statement provided through personal appearance; deposition; 
or recorded interview; or provided by telephone, television, or 
videotape;
    (2) Any response during discovery or other similar proceedings that 
would involve more than the mere physical production of records; and
    (3) Any declaration made under penalty of perjury or any affidavit.
    (i) We or our means the Social Security Administration.
    (j) You means an individual or entity that submits a request for 
records, information or testimony.


Sec. 403.115  When does this part apply?

    (a) Except as specified in paragraph (b) of this section, this part 
applies to any request in connection with any legal proceeding for SSA 
records or other information or for testimony from SSA or its 
employees. This part applies to requests for testimony related to SSA's 
functions or to any information or record created or acquired by SSA as 
a result of the discharge of its official duties.
    (b) This part does not apply to requests for testimony--
    (1) In an SSA administrative proceeding;
    (2) In a legal proceeding to which SSA is a party (``SSA'' here 
includes the Commissioner and any employee acting in his or her 
official capacity);
    (3) From the United States Department of Justice;
    (4) In a criminal proceeding in which the United States is a party;
    (5) In a legal proceeding initiated by state or local authorities 
arising from an investigation or audit initiated by, or conducted in 
cooperation with, SSA's Office of the Inspector General;
    (6) From either house of Congress;
    (7) In a law enforcement proceeding related to threats or acts 
against SSA, its employees, or its operations (``SSA'' here includes 
the Commissioner and any employee acting in his or her official 
capacity); or
    (8) Where Federal law or regulations expressly require a Federal 
employee to provide testimony.


Sec. 403.120  How must I request testimony?

    (a) You must submit a written application for testimony of an SSA 
employee. Your application must--
    (1) Describe in detail the nature and relevance of the testimony 
sought in the legal proceeding;
    (2) Include a detailed explanation as to why you need the 
testimony, why you cannot obtain the information you need from an 
alternative source, and why providing it to you would be in SSA's 
interest; and
    (3) Provide the date and time that you need the testimony and the 
place where SSA would present it.
    (b) You must submit a complete application to SSA at least 30 days 
in advance of the date that you need the testimony. If your application 
is submitted fewer than 30 days before that date, you must provide, in 
addition to the requirements set out above, a detailed explanation as 
to why--
    (1) You did not apply in a timely fashion; and
    (2) It is in SSA's interest to review the untimely application.
    (c) You must send your application for testimony to: Office of the 
General Counsel, Social Security Administration, Post Office Box 17706, 
Baltimore, MD 21235-7760. (If you are requesting testimony of an 
employee of the Office of the Inspector General, send your application 
to the address in Sec. 403.125.)
    (d) The Commissioner has the sole discretion to waive any 
requirement in this section.
    (e) If your application does not include each of the items required 
by paragraph (a) of this section, we may return it to you for 
additional information. Unless the Commissioner waives one or more 
requirements, we will not process an incomplete or untimely 
application.


Sec. 403.125  How will requests for records, information, or testimony 
involving SSA's Office of the Inspector General be handled?

    A request for records or information of the Office of the Inspector 
General or the testimony of an employee of the Office of the Inspector 
General will be handled in accordance with the provisions of this part, 
except that the Inspector General or the Inspector General's designee 
will make those determinations that the Commissioner would make. Send 
your request for records or information pertaining to the Office of the 
Inspector General or your application for testimony of an employee of 
the Office of the Inspector General to: Office of the Inspector 
General, Social Security Administration, 300 Altmeyer Building, 6401 
Security Blvd., Baltimore, MD 21235.


Sec. 403.130  What factors may the Commissioner consider in determining 
whether SSA will grant my application for testimony?

    In deciding whether to authorize the testimony of an SSA employee, 
the Commissioner will consider applicable law and factors relating to 
your need and the burden to SSA. The considerations include, but are 
not limited to--
    (a) Whether providing the testimony would violate a statute (such 
as 26 U.S.C. 6103 or section 1106 of the Social Security Act, 42 U.S.C. 
1306), Executive Order, or regulation (such as 20 CFR part 401);
    (b) Whether granting the application would unduly expend for 
private purposes the resources of the United States (including the time 
of SSA employees needed for official duties);
    (c) Whether it is in SSA's interest to provide the testimony;
    (d) Whether providing the testimony maintains SSA's policy of 
impartiality among private litigants;
    (e) Whether providing the testimony will put confidential, 
sensitive, or privileged information at risk;
    (f) Whether the testimony is available in a less burdensome form or 
from another source;
    (g) Whether the testimony is limited to the purpose of the request;
    (h) Whether providing the testimony is necessary to prevent a 
miscarriage of justice or to preserve the rights of an accused 
individual to due process in a criminal proceeding;
    (i) Whether you have previously requested the same testimony in the 
same or a related proceeding;
    (j) Whether another government agency is involved in the 
proceeding; or
    (k) Whether you need the testimony to prevent fraud or similar 
misconduct.


Sec. 403.135  What happens to my application for testimony?

    (a) If 20 CFR part 401 or 402 do not permit disclosure of 
information about which you seek testimony from an SSA employee, we 
will notify you under Sec. 403.145.
    (b) If 20 CFR part 401 or 402 permit disclosure of the information 
about which you seek testimony,
    (1) The Commissioner makes the final decision on your application;
    (2) All final decisions are in the sole discretion of the 
Commissioner; and
    (3) We will notify you of the final decision on your application.


Sec. 403.140  If the Commissioner authorizes testimony, what will be 
the scope and form of that testimony?

    The employee's testimony must be limited to matters that were 
specifically approved. We will provide testimony in the form that is 
least burdensome to SSA unless you provide sufficient information in 
your application for SSA to justify a different form. For example, we 
will provide an affidavit or declaration rather than a deposition and a 
deposition rather than trial testimony.

[[Page 30043]]

Sec. 403.145  What will SSA do if I have not satisfied the conditions 
in this part or in 20 CFR part 401 or 402?

    (a) We will provide the following information, as appropriate, to 
you or the court or other tribunal conducting the legal proceeding if 
your request states that a response is due on a particular date and the 
conditions prescribed in this part, or the conditions for disclosure in 
20 CFR part 401 or 402, are not satisfied or we anticipate that they 
will not be satisfied by that date:
    (1) A statement that compliance with the request is not authorized 
under 20 CFR part 401 or 402, or is prohibited without the 
Commissioner's approval;
    (2) The requirements for obtaining the approval of the Commissioner 
for testimony or for obtaining information, records, or testimony under 
20 CFR part 401 or 402; and
    (3) If the request complies with Sec. 403.120, the estimated time 
necessary for a decision. We will make every reasonable effort to 
provide this information in writing on or before the date specified in 
your request.
    (b) Generally, if a response to a request for information, records, 
or testimony is due before the conditions of this part or the 
conditions for disclosure in 20 CFR part 401 or 402 are met, no SSA 
employee will appear.
    (c) SSA will seek the advice and assistance of the Department of 
Justice when appropriate.


Sec. 403.150  Must I pay a fee if my request is granted?

    (a) General. Unless the Commissioner grants a waiver, you must pay 
fees for our services in providing information, records, or testimony. 
You must pay the fees as prescribed by the Commissioner. In addition, 
the Commissioner may require that you pay the fees in advance as a 
condition of providing the information, records, or testimony. Make 
fees payable to the Social Security Administration by check or money 
order.
    (b) Records or information. Unless the Commissioner grants a 
waiver, you must pay the fees for production of records or information 
prescribed in 20 CFR 401.95 and 20 CFR 402.155 through 402.185, as 
appropriate.
    (c) Testimony. Unless the Commissioner grants a waiver, you must 
pay fees calculated to reimburse the United States government for the 
full cost of providing the testimony. Those costs include, but are not 
limited to--
    (1) The salary or wages of the witness and related costs for the 
time necessary to prepare for and provide the testimony and any travel 
time, and
    (2) Other travel costs.
    (d) Waiver or reduction of fees. The Commissioner may waive or 
reduce fees for providing information, records, or testimony under this 
part. The rules in 20 CFR 402.185 apply in determining whether to waive 
fees for the production of records. In deciding whether to waive or 
reduce fees for testimony or for production of information that does 
not constitute a record, the Commissioner may consider other factors, 
including but not limited to--
    (1) The ability of the party responsible for the application to pay 
the full amount of the chargeable fees;
    (2) The public interest, as described in 20 CFR 402.185, affected 
by complying with the application;
    (3) The need for the testimony or information in order to prevent a 
miscarriage of justice;
    (4) The extent to which providing the testimony or information 
serves SSA's interest; and
    (5) The burden on SSA's resources required to provide the 
information or testimony.


Sec. 403.155  Does SSA certify records?

    We can certify the authenticity of copies of records we disclose 
pursuant to 20 CFR parts 401 and 402, and this part. We will provide 
this service only in response to your written request. If we certify, 
we will do so at the time of the disclosure and will not certify copies 
of records that have left our custody. A request for certified copies 
of records previously released is considered a new request for records. 
Fees for this certification are set forth in 20 CFR 402.165(e).

[FR Doc. 00-11592 Filed 5-9-00; 8:45 am]
BILLING CODE 4191-02-U


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