Federal Register / Vol. 65, No. 91 / Wednesday, May 10, 2000 / Proposed Rules 30037

statement is made: ‘‘Comments to

Airspace Docket No. 00–ASO–15.’’ The

postcard will be date/time stamped and

returned to the commenter. All

communications received before the

specified closing date for comments will

be considered before taking action on

the proposed rule. The proposal

contained in this notice may be changed

in light of the comments received. All

comments submitted will be available

for examination in the Office of the

Regional Counsel for Southern Region,

Room 550, 1701 Columbia Avenue,

College Park, Georgia 30337, both before

and after the closing date for comments.

A report summarizing each substantive

public contact with FAA personnel

concerned with this rulemaking will be

filed in the docket.

Availability of NPRMs

Any person may obtain a copy of this

Notice of Proposed Rulemaking (NPRM)

by submitting a request to the Federal

Aviation Administration, Manager,

Airspace Branch, ASO–520, Air Traffic

Division, P.O. Box 20636, Atlanta,

Georgia 30320. Communications must

identify the notice number of this

NPRM. Persons interested in being

placed on a mailing list for future

NPRMs should also request a copy of

Advisory Circular No. 11–2A which

describes the application procedure.

The Proposal

The FAA is considering an

amendment to part 71 of the Federal

Aviation Regulations (14 CFR Part 71) to

establish Class E airspace at Scottsboro,

AL. A GPS SIAP, helicopter point in

space approach, has been developed for

Jackson County Hospital. Controlled

airspace extending upward from 700

feet AGL is needed to accommodate the

SIAP. Class E airspace designations for

airspace areas extending upward from

700 feet or more above the surface are

published in Paragraph 6005 of FAA

Order 7400.9G, dated September 1,

1999, and effective September 16, 1999,

which is incorporated by reference in 14

CFR 71.1 The Class E airspace

designation listed in this document

would be published subsequently in the

Order.

The FAA has determined that this

proposed regulation only involves an

established body of technical

regulations for which frequent and

routine amendments are necessary to

keep them operationally current. It,

therefore, (1) is not a ‘‘significant

regulatory action’’ under Executive

Order 12866; (2) is not a ‘‘significant

rule’’ under DOT Regulatory Policies

and Procedures (44 FR 11034; February

26, 1979); and (3) does not warrant

preparation of a Regulatory Evaluation

as the anticipated impact is so minimal.

Since this is a routine matter that will

only affect air traffic procedures and air

navigation, it is certified that this rule,

when promulgated, will not have a

significant economic impact on a

substantial number of small entities

under the criteria of the Regulatory

Flexibility Act.

List of Subjects in 14 CFR Part 71

Airspace, Incorporation by Reference,

Navigation (Air).

The Proposed Amendment

In consideration of the foregoing, the

Federal Aviation Administration

proposes to amend 14 CFR part 71 as

follows:

PART 71—DESIGNATION OF CLASS A,

CLASS B, CLASS C, CLASS D, AND

CLASS E AIRSPACE AREAS;

AIRWAYS; ROUTES; AND REPORTING

POINTS

1. The authority citation for Part 71

continues to read as follows:

Authority: 49 U.S.C. 106(g); 40103, 40113,

40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–

1963 Comp., p. 389.

§ 71.1 [Amended]

2. The incorporation by reference in

14 CFR 71.1 of Federal Aviation

Administration Order 7400.9G, Airspace

Designations and Reporting Points,

dated September 1, 1999, and effective

September 16, 1999, is amended as

follows:

Paragraph 6005 Class E Airspace Areas

Extending Upward from 700 feet or More

Above the Surface of the Earth.

ASO AL E5 Scottsboro, AL [New]

Jackson County Hospital

Point in Space Coordinates

(Lat. 34°39′47′′ N, long. 86°01′54′′ W)

That airspace extending upward from 700

feet or more above the surface within a 6-

mile radius of the point in space (Lat.

34°39′47′′ N, long. 86°01′54′′ W) serving

Jackson County Hospital.

* * * * *

Issued in College Park, Georgia, on April

24, 2000.

Nancy B. Shelton,

Acting Manager, Air Traffic Division,

Southern Region.

[FR Doc. 00–11708 Filed 5–9–00; 8:45 am]

BILLING CODE 4910–13–M

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.

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

regulations@ssa.gov; 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.

30038 Federal Register / Vol. 65, No. 91 / Wednesday, May 10, 2000 / Proposed Rules

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 tollfree 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:

• Have we organized the material to

suit your needs?

• Are the requirements in the rule

clearly stated?

• Does the rule contain technical

language or jargon that isn’t clear?

• Would a different format (grouping

and order of sections, use of headings,

paragraphing) make the rule easier to

understand?

• Would more (but shorter) sections

be better?

• Could we improve clarity by adding

tables, lists, or diagrams?

• 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 § 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 § 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:

• In an SSA administrative

proceeding;

• Related to a case to which SSA is

a party;

• From the United States Department

of Justice;

• In a criminal proceeding to which

the United States is a party;

• 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;

• From either house of Congress;

• In a law enforcement proceeding

related to threats or acts against SSA, its

employees, or its operations; or

• 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

Federal Register / Vol. 65, No. 91 / Wednesday, May 10, 2000 / Proposed Rules 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 § 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 § 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

§ § 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 § 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 § 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:

• Whether providing the testimony

would violate a statute, Executive

Order, or regulation;

• 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);

• Whether providing the testimony is

in SSA’s interest;

• Whether providing the testimony is

consistent with SSA’s policy of

impartiality among private litigants;

• Whether providing the testimony

will put confidential, sensitive, or

privileged information at risk;

• Whether the testimony is available

in a less burdensome form or from

another source;

• Whether the testimony sought is

limited to the purpose of the request;

• 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;

30040 Federal Register / Vol. 65, No. 91 / Wednesday, May 10, 2000 / Proposed Rules

• Whether you previously have

requested the same testimony in the

same or a related proceeding;

• Whether another government

agency is involved in the proceeding;

and

• Whether you need the testimony to

prevent fraud or similar misconduct.

See proposed § 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 § 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 § 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

§ 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 § 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:

• 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;

• Evaluate the accuracy of the

agency’s estimate of the burden of the

Federal Register / Vol. 65, No. 91 / Wednesday, May 10, 2000 / Proposed Rules 30041

proposed collection of information,

including the validity of the

methodology and assumptions used;

• Enhance the quality, utility, and

clarity of the information to be

collected; and

• 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 SecurityDisability Insurance; 96.002 Social SecurityRetirement 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.

§ 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.

§ 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,

§ § 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 § 403.145. We will also

send you any notices required by part

401 or 402.

§ 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 § 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.

30042 Federal Register / Vol. 65, No. 91 / Wednesday, May 10, 2000 / Proposed Rules

(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.

§ 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.

§ 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

§ 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.

§ 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.

§ 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.

§ 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

§ 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.

§ 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.

Federal Register / Vol. 65, No. 91 / Wednesday, May 10, 2000 / Proposed Rules 30043

§ 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

§ 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.

§ 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.

§ 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

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 117

[CGD08–00–005]

RIN 2115–AE47

Drawbridge Operation Regulation;

Chef Menteur Pass, LA

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Coast Guard is proposing

a change to the regulation governing the

operation of the U.S. Highway 90 bridge

across Chef Menteur Pass, mile 2.8 at

Lake Catherine, Orleans Parish,

Louisiana. The proposal would change

the current regulation which provides

for a two-hour morning closure period

between 5:30 a.m. and 7:30 a.m.

Mondays through Fridays except

Federal holidays and require the draw

to open on the hour and half-hour

between 5:30 a.m. to 7:30 a.m., Monday

through Friday, except Federal holidays.

This change would accommodate the

navigation needs of commercial fishing

vessels.

DATES: Comments and related material

must reach the Coast Guard on or before

July 31, 2000.

ADDRESSES: You may mail comments to

Commander (ob), Eighth Coast Guard

District, 501 Magazine Street, New

Orleans, Louisiana 70130–3396, or

deliver them to room 1313 at the same

address between 7 a.m. and 3 p.m.,

Monday through Friday, except Federal

holidays. The Commander, Eighth Coast

Guard District, Bridge Administration

Branch maintains the public docket for

this rulemaking. Comments and

material received from the public, as

well as documents indicated in this

preamble as being available in the

docket, will become part of this docket

and will be available for inspection or

copying at the Bridge Administration

Branch, Eighth Coast Guard District

between 7 a.m. and 3 p.m., Monday

through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Phil

Johnson, Bridge Administration Branch,

504–589–2965.

SUPPLEMENTARY INFORMATION:

Request for Comments

We encourage you to participate in

this rulemaking by submitting

comments and related material. If you

do so, please include your name and

address, identify the docket number for

this rulemaking (CGD08–00–005),

indicate the specific section of this

document to which each comment

applies, and give the reason for each

comment. Please submit all comments

and related material in an unbound

format, no larger than 81/2 by 11 inches,

suitable for copying. If you would like

to know they reached us, please enclose

a stamped, self-addressed postcard or

envelope. We will consider all

comments and material received during

the comment period. We may change

this proposed rule in view of them.

Public Meeting

We do not now plan to hold a public

meeting. But you may submit a request

for a meeting by writing to the

Commander, Eighth Coast Guard

District, Bridge Administration Branch

at the address under ADDRESSES

explaining why one would be

beneficial. If we determine that one

would aid this rulemaking, we will hold