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Title 20 – Employees’ Benefits–Volume 2

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Title 20 – Employees’ Benefits–Volume 2


Part


chapter iii – Social Security Administration

401

CHAPTER III – SOCIAL SECURITY ADMINISTRATION

PART 400 [RESERVED]

PART 401 – PRIVACY AND DISCLOSURE OF OFFICIAL RECORDS AND INFORMATION


Authority:Secs. 205, 702(a)(5), 1106, and 1141 of the Social Security Act (42 U.S.C. 405, 902(a)(5), 1306, and 1320b-11); 5 U.S.C. 552 and 552a; 8 U.S.C. 1360; 26 U.S.C. 6103; 30 U.S.C. 923.


Source:62 FR 4143, Jan. 29, 1997, unless otherwise noted.

Subpart A – General

§ 401.5 Purpose of the regulations.

(a) General. The purpose of this part is to describe the Social Security Administration (SSA) policies and procedures for implementing the requirements of the Privacy Act of 1974, 5 U.S.C. 552a and section 1106 of the Social Security Act concerning disclosure of information about individuals, both with and without their consent. This part also complies with other applicable statutes.


(b) Privacy. This part implements the Privacy Act by establishing agency policies and procedures for the maintenance of records. This part also establishes agency policies and procedures under which you can ask us whether we maintain records about you or obtain access to your records. Additionally, this part establishes policies and procedures under which you may seek to have your record corrected or amended if you believe that your record is not accurate, timely, complete, or relevant.


(c) Disclosure. This part also sets out the general guidelines which we follow in deciding whether to make disclosures. However, we must examine the facts of each case separately to decide if we should disclose the information or keep it confidential.


§ 401.10 Applicability.

(a) SSA. All SSA employees and components are governed by this part. SSA employees governed by this part include all regular and special government employees of SSA; experts and consultants whose temporary (not in excess of 1 year) or intermittent services have been procured by SSA by contract pursuant to 5 U.S.C. 3109; volunteers where acceptance of their services are authorized by law; those individuals performing gratuitous services as permitted under conditions prescribed by the Office of Personnel Management; and, participants in work-study or training programs.


(b) Other entities. This part also applies to advisory committees and councils within the meaning of the Federal Advisory Committee Act which provide advice to: Any official or component of SSA; or the President and for which SSA has been delegated responsibility for providing services.


§ 401.15 Limitations on scope.

The regulations in this part do not –


(a) Make available to an individual records which are not retrieved by that individual’s name or other personal identifier.


(b) Make available to the general public records which are retrieved by an individual’s name or other personal identifier or make available to the general public records which would otherwise not be available to the general public under the Freedom of Information Act, 5 U.S.C. 552, and part 402 of this title.


(c) Govern the maintenance or disclosure of, notification about or access to, records in the possession of SSA which are subject to the regulations of another agency, such as personnel records which are part of a system of records administered by the Office of Personnel Management.


(d) Apply to grantees, including State and local governments or subdivisions thereof, administering federally funded programs.


(e) Make available records compiled by SSA in reasonable anticipation of court litigation or formal administrative proceedings. The availability of such records to the general public or to any subject individual or party to such litigation or proceedings shall be governed by applicable constitutional principles, rules of discovery, and applicable regulations of the agency.


§ 401.20 Scope.

(a) Access. Sections 401.30 through 401.95, which set out SSA’s rules for implementing the Privacy Act, apply to records retrieved by an individual’s name or personal identifier subject to the Privacy Act. The rules in §§ 401.30 through 401.95 also apply to information developed by medical sources for the Social Security program and shall not be accessed except as permitted by this part.


(b) Disclosure – (1) Program records. Regulations that apply to the disclosure of information about an individual contained in SSA’s program records are set out in §§ 401.100 through 401.200 of this part. These regulations also apply to the disclosure of other Federal program information which SSA maintains. That information includes:


(i) Health insurance records which SSA maintains for the Health Care Financing Administration’s (HCFA) programs under title XVIII of the Social Security Act. We will disclose these records to HCFA. HCFA may redisclose these records under the regulations applying to records in HCFA’s custody;


(ii) Black lung benefit records which SSA maintains for the administration of the Federal Coal Mine Health and Safety Act; (However, this information is not covered by section 1106 of the Social Security Act.) and


(iii) Information retained by medical sources pertaining to a consultative examination performed for the Social Security program shall not be disclosed except as permitted by this part.


(2) Nonprogram records. Section 401.110 sets out rules applicable to the disclosure of nonprogram records, e.g., SSA’s administrative and personnel records.


[62 FR 4143, Jan. 29, 1997, as amended at 65 FR 16812, Mar. 30, 2000; 72 FR 20939, Apr. 27, 2007]


§ 401.25 Terms defined.

Access means making a record available to a subject individual.


Act means the Social Security Act.


Agency means the Social Security Administration.


Commissioner means the Commissioner of Social Security.


Disclosure means making a record about an individual available to or releasing it to another party.


FOIA means the Freedom of Information Act.


Individual when used in connection with the Privacy Act or for disclosure of nonprogram records, means a living person who is a citizen of the United States or an alien lawfully admitted for permanent residence. It does not include persons such as sole proprietorships, partnerships, or corporations. A business firm which is identified by the name of one or more persons is not an individual. When used in connection with the rules governing program information, individual means a living natural person; this does not include corporations, partnerships, and unincorporated business or professional groups of two or more persons.


Information means information about an individual, and includes, but is not limited to, vital statistics; race, sex, or other physical characteristics; earnings information; professional fees paid to an individual and other financial information; benefit data or other claims information; the social security number, employer identification number, or other individual identifier; address; phone number; medical information, including psychological or psychiatric information or lay information used in a medical determination; and information about marital and family relationships and other personal relationships.


Maintain means to establish, collect, use, or disseminate when used in connection with the term record; and, to have control over or responsibility for a system of records when used in connection with the term system of records.


Notification means communication to an individual whether he is a subject individual. (Subject individual is defined further on in this section.)


Program information means personal information and records collected and compiled by SSA in order to discharge its responsibilities under titles I, II, IV part A, X, XI, XIV, XVI and XVIII of the Act and parts B and C of the Federal Coal Mine Health and Safety Act.


Record means any item, collection, or grouping of information about an individual that is maintained by SSA including, but not limited to, information such as an individual’s education, financial transactions, medical history, and criminal or employment history that contains the individual’s name, or an identifying number, symbol, or any other means by which an individual can be identified. When used in this part, record means only a record which is in a system of records.


Routine use means the disclosure of a record outside SSA, without the consent of the subject individual, for a purpose which is compatible with the purpose for which the record was collected. It includes disclosures required to be made by statutes other than the Freedom of Information Act, 5 U.S.C. 552. It does not include disclosures which the Privacy Act otherwise permits without the consent of the subject individual and without regard to whether they are compatible with the purpose for which the information is collected, such as disclosures to the Bureau of the Census, the General Accounting Office, or to Congress.


Social Security Administration (SSA) means (1) that Federal agency which has administrative responsibilities under titles, I, II, X, XI, XIV, XVI, and XVIII of the Act; and (2) units of State governments which make determinations under agreements made under sections 221 and 1633 of the Act.


Social Security program means any program or provision of law which SSA is responsible for administering, including the Freedom of Information Act and Privacy Act. This includes our responsibilities under parts B and C of the Federal Coal Mine Health and Safety Act.


Statistical record means a record maintained for statistical research or reporting purposes only and not maintained to make determinations about a particular subject individual.


Subject individual means the person to whom a record pertains.


System of records means a group of records under our control from which information about an individual is retrieved by the name of the individual or by an identifying number, symbol, or other identifying particular. Single records or groups of records which are not retrieved by a personal identifier are not part of a system of records. Papers maintained by individual Agency employees which are prepared, maintained, or discarded at the discretion of the employee and which are not subject to the Federal Records Act, 44 U.S.C. 2901, are not part of a system of records; provided, that such personal papers are not used by the employee or the Agency to determine any rights, benefits, or privileges of individuals.


We and our mean the Social Security Administration.


Subpart B – The Privacy Act

§ 401.30 Privacy Act and other responsibilities.

(a) Policy. Our policy is to protect the privacy of individuals to the fullest extent possible while nonetheless permitting the exchange of records required to fulfill our administrative and program responsibilities, and responsibilities for disclosing records which the general public is entitled to have under the Freedom of Information Act, 5 U.S.C. 552, and 20 CFR part 402.


(b) Maintenance of records. We will maintain no record unless:


(1) It is relevant and necessary to accomplish an SSA function which is required to be accomplished by statute or Executive Order;


(2) We obtain the information in the record, as much as it is practicable, from the subject individual if we may use the record to determine an individual’s rights, benefits or privileges under Federal programs;


(3) We inform the individual providing the record to us of the authority for our asking him or her to provide the record (including whether providing the record is mandatory or voluntary, the principal purpose for maintaining the record, the routine uses for the record, and what effect his or her refusal to provide the record may have on him or her). Further, the individual agrees to provide the record, if the individual is not required by statute or Executive Order to do so.


(c) First Amendment rights. We will keep no record which describes how an individual exercises rights guaranteed by the First Amendment unless we are expressly authorized:


(1) By statute,


(2) By the subject individual, or


(3) Unless pertinent to and within the scope of an authorized law enforcement activity.


(d) Privacy Officer. The Privacy Officer is an advisor to the Agency on all privacy policy and disclosure matters. The Privacy Officer coordinates the development and implementation of Agency privacy policies and related legal requirements to ensure Privacy Act compliance, and monitors the coordination, collection, maintenance, use and disclosure of personal information. The Privacy Officer also ensures the integration of privacy principles into information technology systems architecture and technical designs, and generally provides to Agency officials policy guidance and directives in carrying out the privacy and disclosure policy.


(e) Senior Agency Official for Privacy. The Senior Agency Official for Privacy assumes overall responsibility and accountability for ensuring the agency’s implementation of information privacy protections as well as agency compliance with federal laws, regulations, and policies relating to the privacy of information, such as the Privacy Act. The compliance efforts also include reviewing information privacy procedures to ensure that they are comprehensive and up-to-date and, where additional or revised procedures may be called for, working with the relevant agency offices in the consideration, adoption, and implementation of such procedures. The official also ensures that agency employees and contractors receive appropriate training and education programs regarding the information privacy laws, regulations, polices and procedures governing the agency’s handling of personal information. In addition to the compliance role, the official has a central policy-making role in the agency’s development and evaluation of legislative, regulatory and other policy proposals which might implicate information privacy issues, including those relating to the collection, use, sharing, and disclosure of personal information.


(f) Privacy Impact Assessment. In our comprehensive Privacy Impact Assessment (PIA) review process, we incorporate the tenets of privacy law, SSA privacy regulations, and privacy policy directly into the development of certain Information Technology projects. Our review examines the risks and ramifications of collecting, maintaining and disseminating information in identifiable form in an electronic information system and identifies and evaluates protections and alternate processes to reduce the risk of unauthorized disclosures. As we accomplish the PIA review, we ask systems personnel and program personnel to resolve questions on data needs and data protection prior to the development of the electronic system.


[62 FR 4143, Jan. 29, 1997, as amended at 72 FR 20939, Apr. 27, 2007]


§ 401.35 Your right to request records.

The Privacy Act gives you the right to direct access to most records about yourself that are in our systems of records. Exceptions to this Privacy Act right include –


(a) Special procedures for access to certain medical records (see 5 U.S.C. 552a(f)(3) and § 401.55);


(b) Unavailability of certain criminal law enforcement records (see 5 U.S.C. 552a(k), and § 401.85); and


(c) Unavailability of records compiled in reasonable anticipation of a court action or formal administrative proceeding.



Note to § 401.35:

The Freedom of Information Act (see 20 CFR part 402) allows you to request information from SSA whether or not it is in a system of records.


§ 401.40 How to get your own records.

(a) Your right to notification and access. Subject to the provisions governing medical records in § 401.55, you may ask for notification of or access to any record about yourself that is in an SSA system of records. If you are a minor, you may get information about yourself under the same rules as for an adult. Under the Privacy Act, if you are the parent or guardian of a minor, or the legal guardian of someone who has been declared legally incompetent, and you are acting on his or her behalf, you may ask for information about that individual. You may be accompanied by another individual of your choice when you request access to a record in person, provided that you affirmatively authorize the presence of such other individual during any discussion of a record to which you are requesting access.


(b) Identifying the records. At the time of your request, you must specify which systems of records you wish to have searched and the records to which you wish to have access. You may also request copies of all or any such records. Also, we may ask you to provide sufficient particulars to enable us to distinguish between records on individuals with the same name. The necessary particulars are set forth in the notices of systems of records which are published in the Federal Register.


(c) Requesting notification or access. To request notification of or access to a record, you may visit your local social security office or write to the manager of the SSA system of records. The name and address of the manager of the system is part of the notice of systems of records. Every local social security office keeps a copy of the Federal Register containing that notice. That office can also help you get access to your record. You do not need to use any special form to ask for a record about you in our files, but your request must give enough identifying information about the record you want to enable us to find your particular record. This identifying information should include the system of records in which the record is located and the name and social security number (or other identifier) under which the record is filed. We do not honor requests for all records, all information, or similar blanket requests. Before granting notification of or access to a record, we may, if you are making your request in person, require you to put your request in writing if you have not already done so.


§ 401.45 Verifying your identity.

(a) When required. Unless you are making a request for notification of or access to a record in person, and you are personally known to the SSA representative, you must verify your identity in accordance with paragraph (b) of this section if:


(1) You make a request for notification of a record and we determine that the mere notice of the existence of the record would be a clearly unwarranted invasion of privacy if disclosed to someone other than the subject individual; or,


(2) You make a request for access to a record which is not required to be disclosed to the general public under the Freedom of Information Act, 5 U.S.C. 552, and part 402 of this chapter.


(b) Manner of verifying identity – (1) Request in person. If you make a request to us in person, you must provide at least one piece of tangible identification such as a driver’s license, passport, alien or voter registration card, or union card to verify your identity. If you do not have identification papers to verify your identity, you must certify in writing that you are the individual who you claim to be and that you understand that the knowing and willful request for or acquisition of a record pertaining to an individual under false pretenses is a criminal offense.


(2) Request by telephone. If you make a request by telephone, you must verify your identity by providing identifying particulars which parallel the record to which notification or access is being sought. If we determine that the particulars provided by telephone are insufficient, you will be required to submit your request in writing or in person. We will not accept telephone requests where an individual is requesting notification of or access to sensitive records such as medical records.


(3) Electronic requests. If you make a request by computer or other electronic means, e.g., over the Internet, we require you to verify your identity by using identity confirmation procedures that are commensurate with the sensitivity of the information that you are requesting. If we cannot confirm your identity using our identity confirmation procedures, we will not process the electronic request. When you cannot verify your identity through our procedures, we will require you to submit your request in writing.


(4) Electronic disclosures. When we collect or provide personally identifiable information over open networks such as the Internet, we use encryption in all of our automated online transaction systems to protect the confidentiality of the information. When we provide an online access option, such as a standard e-mail comment form on our Web site, and encryption is not being used, we alert you that personally identifiable information (such as your social security number) should not be included in your message.


(5) Requests not made in person. Except as provided in paragraphs (b)(2) of this section, if you do not make a request in person, you must submit a written request to SSA to verify your identify or you must certify in your request that you are the individual you claim to be. You must also sign a statement that you understand that the knowing and willful request for or acquisition of a record pertaining to an individual under false pretenses is a criminal offense.


(6) Requests on behalf of another. If you make a request on behalf of a minor or legal incompetent as authorized under § 401.40, you must verify your relationship to the minor or legal incompetent, in addition to verifying your own identity, by providing a copy of the minor’s birth certificate, a court order, or other competent evidence of guardianship to SSA; except that you are not required to verify your relationship to the minor or legal incompetent when you are not required to verify your own identity or when evidence of your relationship to the minor or legal incompetent has been previously given to SSA.


(7) Medical records – additional verification. You need to further verify your identity if you are requesting notification of or access to sensitive records such as medical records. Any information for further verification must parallel the information in the record to which notification or access is being sought. Such further verification may include such particulars as the date or place of birth, names of parents, name of employer or the specific times the individual received medical treatment.


[62 FR 4143, Jan. 29, 1997, as amended at 72 FR 20939, Apr. 27, 2007]


§ 401.50 Granting notification of or access to a record.

(a) General. Subject to the provisions governing medical records in § 401.55 and the provisions governing exempt systems in § 401.85, upon receipt of your request for notification of or access to a record and verification of your identity, we will review your request and grant notification or access to a record, if you are the subject of the record.


(b) Our delay in responding. If we determine that we will have to delay responding to your request because of the number of requests we are processing, a breakdown of equipment, shortage of personnel, storage of records in other locations, etc., we will so inform you and tell you when notification or access will be granted.


§ 401.55 Access to medical records.

(a) General. You have a right to access your medical records, including any psychological information that we maintain.


(b) Medical records procedures – (1) Notification of or access to medical records. (i) You may request notification of or access to a medical record pertaining to you. Unless you are a parent or guardian requesting notification of or access to a minor’s medical record, you must make a request for a medical record in accordance with this section and the procedures in §§ 401.45 through 401.50 of this part.


(ii) When you request medical information about yourself, you must also name a representative in writing. The representative may be a physician, other health professional, or other responsible individual who will be willing to review the record and inform you of its contents. Following the discussion, you are entitled to your records. The representative does not have the discretion to withhold any part of your record. If you do not designate a representative, we may decline to release the requested information. In some cases, it may be possible to release medical information directly to you rather than to your representative.


(2) Utilization of the designated representative. You will be granted direct access to your medical record if we can determine that direct access is not likely to have an adverse effect on you. If we believe that we are not qualified to determine, or if we do determine, that direct access to you is likely to have an adverse effect, the record will be sent to the designated representative. We will inform you in writing that the record has been sent.


(c) Medical records of minors – (1) Request by the minor. You may request access to your own medical records in accordance with paragraph (b) of this section.


(2) Requests on a minor’s behalf; notification of or access to medical records to an individual on a minor’s behalf. (i) To protect the privacy of a minor, we will not give to a parent or guardian direct notification of or access to a minor’s record, even though the parent or guardian who requests such notification or access is authorized to act on a minor’s behalf as provided in § 401.75 of this part.


(ii) A parent or guardian must make all requests for notification of or access to a minor’s medical record in accordance with this paragraph and the procedures in §§ 401.45 through 401.50 of this part. A parent or guardian must at the time he or she makes a request designate a family physician or other health professional (other than a family member) to whom the record, if any, will be sent. If the parent or guardian will not designate a representative, we will decline to release the requested information.


(iii) Where a medical record on the minor exists, we will in all cases send it to the physician or health professional designated by the parent or guardian. The representative will review the record, discuss its contents with the parent or legal guardian, then release the entire record to the parent or legal guardian. The representative does not have the discretion to withhold any part of the minor’s record. We will respond in the following similar manner to the parent or guardian making the request: “We have completed processing your request for notification of or access to _____’s (Name of minor) medical records. Please be informed that if any medical record was found pertaining to that individual, it has been sent to your designated physician or health professional.”


(iv) In each case where we send a minor’s medical record to a physician or health professional, we will make reasonable efforts to inform the minor that we have given the record to the representative.


(3) Requests on behalf of an incapacitated adult. If you are the legal guardian of an adult who has been declared legally incompetent, you may receive his or her records directly.


[62 FR 4143, Jan. 29, 1997, as amended at 72 FR 20939, Apr. 27, 2007]


§ 401.60 Access to or notification of program records about more than one individual.

When information about more than one individual is in one record filed under your social security number, you may receive the information about you and the fact of entitlement and the amount of benefits payable to other persons based on your record. You may receive information about yourself or others, which is filed under someone else’s social security number, if that information affects your entitlement to social security benefits or the amount of those benefits.


[62 FR 4143, Jan. 29, 1997, as amended at 72 FR 20940, Apr. 27, 2007]


§ 401.65 How to correct your record.

(a) How to request a correction. This section applies to all records kept by SSA (as described in § 401.5) except for records of earnings. (20 CFR 422.125 describes how to request correction of your earnings record.) You may request that your record be corrected or amended if you believe that the record is not accurate, timely, complete, relevant, or necessary to the administration of a social security program. To amend or correct your record, you should write to the manager identified in the notice of systems of records which is published in the Federal Register (see § 401.40(c) on how to locate this information). The staff at any social security office can help you prepare the request. You should submit any available evidence to support your request. Your request should indicate –


(1) The system of records from which the record is retrieved;


(2) The particular record which you want to correct or amend;


(3) Whether you want to add, delete or substitute information in the record; and


(4) Your reasons for believing that your record should be corrected or amended.


(b) What we will not change. You cannot use the correction process to alter, delete, or amend information which is part of a determination of fact or which is evidence received in the record of a claim in the administrative appeal process. Disagreements with these determinations are to be resolved through the SSA appeal process. (See subparts I and J of part 404, and subpart N of part 416, of this chapter.) For example, you cannot use the correction process to alter or delete a document showing a birth date used in deciding your social security claim. However, you may submit a statement on why you think certain information should be altered, deleted, or amended, and we will make this statement part of your file.


(c) Acknowledgment of correction request. We will acknowledge receipt of a correction request within 10 working days, unless we can review and process the request and give an initial determination of denial or compliance before that time.


(d) Notice of error. If the record is wrong, we will correct it promptly. If wrong information was disclosed from the record, we will tell all those of whom we are aware received that information that it was wrong and will give them the correct information. This will not be necessary if the change is not due to an error, e.g., a change of name or address.


(e) Record found to be correct. If the record is correct, we will inform you in writing of the reason why we refuse to amend your record and we will also inform you of your right to seek a review of the refusal and the name and address of the official to whom you should send your request for review.


(f) Record of another government agency. If you request us to correct or amend a record governed by the regulation of another government agency, e.g., Office of Personnel Management, Federal Bureau of Investigation, we will forward your request to such government agency for processing and we will inform you in writing of the referral.


§ 401.70 Appeals of refusals to correct records or refusals to allow access to records.

(a) General. This section describes how to appeal decisions made by SSA under the Privacy Act concerning your request for correction of or access to your records, those of your minor child, or those of a person for whom you are the legal guardian. We generally handle a denial of your request for information about another person under the provisions of the Freedom of Information Act (see part 402 of this chapter). To appeal a decision under this section, your request must be in writing.


(b) Appeal of refusal to correct or amend records. If we deny your request to correct an SSA record, you may request a review of that decision. As discussed in § 401.65(e), our letter denying your request will tell you to whom to write.


(1) We will review your request within 30 working days from the date of the receipt. However, for a good reason and with the approval of the Executive Director for the Office of Public Disclosure, this time limit may be extended up to an additional 30 days. In that case, we will notify you about the delay, the reason for it and the date when the review is expected to be completed.


(2) If, after review, we determine that the record should be corrected, we will do so. However, if we refuse to amend the record as you requested, we will inform you that –


(i) Your request has been refused and the reason for refusing;


(ii) The refusal is SSA’s final decision; and


(iii) You have a right to seek court review of SSA’s final decision.


(3) We will also inform you that you have a right to file a statement of disagreement with the decision. Your statement should include the reason you disagree. We will make your statement available to anyone to whom the record is subsequently disclosed, together with a statement of our reasons for refusing to amend the record. Also, we will provide a copy of your statement to individuals whom we are aware received the record previously.


(c) Appeals after denial of access. If, under the Privacy Act, we deny your request for access to your own record, those of your minor child or those of a person to whom you are the legal guardian, we will advise you in writing of the reason for that denial, the name and title or position of the person responsible for the decision and your right to appeal that decision. You may appeal the denial decision to the Executive Director for the Office of Public Disclosure, 6401 Security Boulevard, Baltimore, MD 21235-6401, within 30 days after you receive notice denying all or part of your request, or, if later, within 30 days after you receive materials sent to you in partial compliance with your request.


(d) Filing your appeal. If you file an appeal, the Executive Director or his or her designee will review your request and any supporting information submitted and then send you a notice explaining the decision on your appeal. The time limit for making our decision after we receive your appeal is 30 working days. The Executive Director or his or her designee may extend this time limit up to 30 additional working days if one of the circumstances in 20 CFR 402.140 is met. We will notify you in writing of any extension, the reason for the extension and the date by which we will decide your appeal. The notice of the decision on your appeal will explain your right to have the matter reviewed in a Federal district court if you disagree with all or part of our decision.


[72 FR 20940, Apr. 27, 2007]


§ 401.75 Rights of parents or legal guardians.

For purposes of this part, a parent or guardian of any minor or the legal guardian of any individual who has been declared incompetent due to physical or mental incapacity or age by a court of competent jurisdiction is authorized to act on behalf of a minor or incompetent individual. Except as provided in § 401.45, governing procedures for verifying an individual’s identity, and § 401.55(c) governing special procedures for notification of or access to a minor’s medical records, if you are authorized to act on behalf of a minor or legal incompetent, you will be viewed as if you were the individual or subject individual.


§ 401.80 Accounting for disclosures.

(a) We will maintain an accounting of all disclosures of a record for five years or for the life of the record, whichever is longer; except that, we will not make accounting for:


(1) Disclosures under paragraphs (a) and (b) of § 401.110; and,


(2) Disclosures of your record made with your written consent.


(b) The accounting will include:


(1) The date, nature, and purpose of each disclosure; and


(2) The name and address of the person or entity to whom the disclosure is made.


(c) You may request access to an accounting of disclosures of your record. You must request access to an accounting in accordance with the procedures in § 401.40. You will be granted access to an accounting of the disclosures of your record in accordance with the procedures of this part which govern access to the related record. We may, at our discretion, grant access to an accounting of a disclosure of a record made under paragraph (g) of § 401.110.


§ 401.85 Exempt systems.

(a) General policy. The Privacy Act permits certain types of specific systems of records to be exempt from some of its requirements. Our policy is to exercise authority to exempt systems of records only in compelling cases.


(b) Specific systems of records exempted. (1) Those systems of records listed in paragraph (b)(2) of this section are exempt from the following provisions of the Act and this part:


(i) 5 U.S.C. 552a(c)(3) and paragraph (c) of § 401.80 of this part which require that you be granted access to an accounting of disclosures of your record.


(ii) 5 U.S.C. 552a (d) (1) through (4) and (f) and §§ 401.35 through 401.75 relating to notification of or access to records and correction or amendment of records.


(iii) 5 U.S.C. 552a(e)(4) (G) and (H) which require that we include information about SSA procedures for notification, access, and correction or amendment of records in the notice for the systems of records.


(iv) 5 U.S.C. 552a(e)(3) and § 401.30 which require that if we ask you to provide a record to us, we must inform you of the authority for our asking you to provide the record (including whether providing the record is mandatory or voluntary, the principal purposes for maintaining the record, the routine uses for the record, and what effect your refusal to provide the record may have on you), and if you are not required by statute or Executive Order to provide the record, that you agree to provide the record. This exemption applies only to an investigatory record compiled by SSA for criminal law enforcement purposes in a system of records exempt under subsection (j)(2) of the Privacy Act to the extent that these requirements would prejudice the conduct of the investigation.


(2) The following systems of records are exempt from those provisions of the Privacy Act and this part listed in paragraph (b)(1) of this section:


(i) Pursuant to subsection (j)(2) of the Privacy Act, the Investigatory Material Compiled for Law Enforcement Purposes System, SSA.


(ii) Pursuant to subsection (k)(2) of the Privacy Act:


(A) The General Criminal Investigation Files, SSA;


(B) The Criminal Investigations File, SSA; and,


(C) The Program Integrity Case Files, SSA.


(D) Civil and Administrative Investigative Files of the Inspector General, SSA/OIG.


(E) Complaint Files and Log. SSA/OGC.


(F) Anti-Harassment & Hostile Work Environment Case Tracking and Records System, SSA.


(G) Social Security Administration Violence Evaluation and Reporting System, SSA.


(H) Anti-Fraud System, SSA.


(iii) Pursuant to subsection (k)(5) of the Privacy Act:


(A) Security and Suitability Files.


(B) [Reserved]


(iv) Pursuant to subsection (k)(6) of the Privacy Act, the Personnel Research and Merit Promotion Test Records, SSA/DCHR/OPE.


(c) Notification of or access to records in exempt systems of records. (1) Where a system of records is exempt as provided in paragraph (b) of this section, you may nonetheless request notification of or access to a record in that system. You should make requests for notification of or access to a record in an exempt system of records in accordance with the procedures of §§ 401.35 through 401.55.


(2) We will grant you notification of or access to a record in an exempt system but only to the extent such notification or access would not reveal the identity of a source who furnished the record to us under an express promise, and prior to September 27, 1975, an implied promise, that his or her identity would be held in confidence, if:


(i) The record is in a system of records which is exempt under subsection (k)(2) of the Privacy Act and you have been, as a result of the maintenance of the record, denied a right, privilege, or benefit to which you would otherwise be eligible; or,


(ii) The record is in a system of records which is exempt under subsection (k)(5) of the Privacy Act.


(3) If we do not grant you notification of or access to a record in a system of records exempt under subsections (k) (2) and (5) of the Privacy Act in accordance with this paragraph, we will inform you that the identity of a confidential source would be revealed if we granted you notification of or access to the record.


(d) Discretionary actions by SSA. Unless disclosure of a record to the general public is otherwise prohibited by law, we may at our discretion grant notification of or access to a record in a system of records which is exempt under paragraph (b) of this section. Discretionary notification of or access to a record in accordance with this paragraph will not be a precedent for discretionary notification of or access to a similar or related record and will not obligate us to exercise discretion to grant notification of or access to any other record in a system of records which is exempt under paragraph (b) of this section.


[62 FR 4143, Jan. 29, 1997, as amended at 82 FR 16510, Apr. 5, 2017; 83 FR 63416, Dec. 10, 2018; 84 FR 45901, Sept. 3, 2019; 87 FR 25141, Apr. 28, 2022]


§ 401.90 Contractors.

(a) All contracts which require a contractor to maintain, or on behalf of SSA to maintain, a system of records to accomplish an SSA function must contain a provision requiring the contractor to comply with the Privacy Act and this part.


(b) A contractor and any employee of such contractor will be considered employees of SSA only for the purposes of the criminal penalties of the Privacy Act, 5 U.S.C. 552a(i), and the employee standards of conduct (see appendix A of this part) where the contract contains a provision requiring the contractor to comply with the Privacy Act and this part.


(c) This section does not apply to systems of records maintained by a contractor as a result of his management discretion, e.g., the contractor’s personnel records.


§ 401.95 Fees.

(a) Policy. Where applicable, we will charge fees for copying records in accordance with the schedule set forth in this section. We may only charge fees where you request that a copy be made of the record to which you are granted access. We will not charge a fee for searching a system of records, whether the search is manual, mechanical, or electronic. Where we must copy the record in order to provide access to the record (e.g., computer printout where no screen reading is available), we will provide the copy to you without cost. Where we make a medical record available to a representative designated by you or to a physician or health professional designated by a parent or guardian under § 401.55 of this part, we will not charge a fee.


(b) Fee schedule. Our Privacy Act fee schedule is as follows:


(1) Copying of records susceptible to photocopying – $.10 per page.


(2) Copying records not susceptible to photocopying (e.g., punch cards or magnetic tapes) – at actual cost to be determined on a case-by-case basis.


(3) We will not charge if the total amount of copying does not exceed $25.


(c) Other fees. We also follow §§ 402.155 through 402.165 of this chapter to determine the amount of fees, if any, we will charge for providing information under the FOIA and Privacy Act.


Subpart C – Disclosure of Official Records and Information

§ 401.100 Disclosure of records with the written consent of the subject of the record.

(a) General. Except as permitted by the Privacy Act and the regulations in this part, or when required by the FOIA, we will not disclose your records without your written consent.


(b) Disclosure with written consent. The written consent must clearly specify to whom the information may be disclosed, the information you want us to disclose (e.g., social security number, date and place of birth, monthly Social Security benefit amount, date of entitlement), and, where applicable, during which timeframe the information may be disclosed (e.g., during the school year, while the subject individual is out of the country, whenever the subject individual is receiving specific services).


(c) Disclosure of the entire record. We will not disclose your entire record. For example, we will not honor a blanket consent for all information in a system of records or any other record consisting of a variety of data elements. We will disclose only the information you specify in the consent. We will verify your identity and where applicable (e.g., where you consent to disclosure of a record to a specific individual), the identity of the individual to whom the record is to be disclosed.


(d) A parent or guardian of a minor is not authorized to give written consent to a disclosure of a minor’s medical record. See § 401.55(c)(2) for the procedures for disclosure of or access to medical records of minors.


[72 FR 20940, Apr. 27, 2007]


§ 401.105 Disclosure of personal information without the consent of the subject of the record.

(a) SSA maintains two categories of records which contain personal information:


(1) Nonprogram records, primarily administrative and personnel records which contain information about SSA’s activities as a government agency and employer, and


(2) Program records which contain information about SSA’s clients that it keeps to administer benefit programs under Federal law.


(b) We apply different levels of confidentiality to disclosures of information in the categories in paragraphs (a) (1) and (2) of this section. For administrative and personnel records, the Privacy Act applies. To the extent that SSA has physical custody of personnel records maintained as part of the Office of Personnel Management’s (OPM) Privacy Act government-wide systems of records, these records are subject to OPM’s rules on access and disclosure at 5 CFR parts 293 and 297. For program records, we apply somewhat more strict confidentiality standards than those found in the Privacy Act. The reason for this difference in treatment is that our program records include information about a much greater number of persons than our administrative records, the information we must collect for program purposes is often very sensitive, and claimants are required by statute and regulation to provide us with the information in order to establish entitlement for benefits.


[62 FR 4143, Jan. 29, 1997, as amended at 72 FR 20940, Apr. 27, 2007]


§ 401.110 Disclosure of personal information in nonprogram records without the consent of the subject of the record.

The disclosures listed in this section may be made from our nonprogram records, e.g., administrative and personnel records, without your consent. Such disclosures are those:


(a) To officers and employees of SSA who have a need for the record in the performance of their duties. The SSA official who is responsible for the record may upon request of any officer or employee, or on his own initiative, determine what constitutes legitimate need.


(b) Required to be disclosed under the Freedom of Information Act, 5 U.S.C. 552, and 20 CFR part 402.


(c) For a routine use as defined in § 401.25 of this part. Routine uses will be listed in any notice of a system of records. SSA publishes notices of systems of records, including all pertinent routine uses, in the Federal Register.


(d) To the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of Title 13 U.S.C.


(e) To a recipient who has provided us with advance written assurance that the record will be used solely as a statistical research or reporting record; Provided, that, the record is transferred in a form that does not identify the subject individual.


(f) To the National Archives of the United States as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, or for evaluation by the Administrator of General Services or his designee to determine whether the record has such value.


(g) To another government agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of such government agency or instrumentality has submitted a written request to us, specifying the record desired and the law enforcement activity for which the record is sought.


(h) To an individual pursuant to a showing of compelling circumstances affecting the health or safety of any individual if a notice of the disclosure is transmitted to the last known address of the subject individual.


(i) To either House of Congress, or to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee.


(j) To the Comptroller General, or any of his authorized representatives, in the course of the performance of duties of the Government Accountability Office.


(k) Pursuant to the order of a court of competent jurisdiction.


[62 FR 4143, Jan. 29, 1997, as amended at 72 FR 20940, Apr. 27, 2007]


§ 401.115 Disclosure of personal information in program records without the consent of the subject of the record.

This section describes how various laws control the disclosure of personal information that we keep. We disclose information in the program records only when a legitimate need exists. For example, we disclose information to officers and employees of SSA who have a need for the record in the performance of their duties. We also must consider the laws identified below in the respective order when we disclose program information:


(a) Some laws require us to disclose information (§ 401.120); some laws require us to withhold information (§ 401.125). These laws control whenever they apply.


(b) If no law of this type applies in a given case, then we must look to FOIA principles. See § 401.130.


(c) When FOIA principles do not require disclosure, we may disclose information if both the Privacy Act and section 1106 of the Social Security Act permit the disclosure.


[62 FR 4143, Jan. 29, 1997, as amended at 72 FR 20940, Apr. 27, 2007]


§ 401.120 Disclosures required by law.

We disclose information when a law specifically requires it. The Social Security Act requires us to disclose information for certain program purposes. These include disclosures to the SSA Office of Inspector General, the Federal Parent Locator Service, and to States pursuant to an arrangement regarding use of the Blood Donor Locator Service. Also, there are other laws which require that we furnish other agencies information which they need for their programs. These agencies include the Department of Veterans Affairs for its benefit programs, U.S. Citizenship and Immigration Services to carry out its duties regarding aliens, the Railroad Retirement Board for its benefit programs, and to Federal, State and local agencies administering Temporary Assistance for Needy Families, Medicaid, unemployment compensation, food stamps, and other programs.


[62 FR 4143, Jan. 29, 1997, as amended at 72 FR 20941, Apr. 27, 2007]


§ 401.125 Disclosures prohibited by law.

We do not disclose information when a law specifically prohibits it. The Internal Revenue Code generally prohibits us from disclosing tax return information which we receive to maintain individual earnings records. This includes, for example, amounts of wages and contributions from employers. Other laws restrict our disclosure of certain information about drug and alcohol abuse which we collect to determine eligibility for social security benefits.


§ 401.130 Freedom of Information Act.

The FOIA requires us to disclose any information in our records upon request from the public, unless one of several exemptions in the FOIA applies. When the FOIA requires disclosure (see part 402 of this chapter), the Privacy Act permits it. The public does not include Federal agencies, courts, or the Congress, but does include State agencies, individuals, corporations, and most other parties. The FOIA does not apply to requests that are not from the public (e.g., from a Federal agency). However, we apply FOIA principles to requests from these other sources for disclosure of program information.


§ 401.135 Other laws.

When the FOIA does not apply, we may not disclose any personal information unless both the Privacy Act and section 1106 of the Social Security Act permit the disclosure. Section 1106 of the Social Security Act requires that disclosures which may be made must be set out in statute or regulations; therefore, any disclosure permitted by this part is permitted by section 1106.


§ 401.140 General principles.

When no law specifically requiring or prohibiting disclosure applies to a question of whether to disclose information, we follow FOIA principles to resolve that question. We do this to insure uniform treatment in all situations. The FOIA principle which most often applies to SSA disclosure questions is whether the disclosure would result in a “clearly unwarranted invasion of personal privacy.” To decide whether a disclosure would be a clearly unwarranted invasion of personal privacy we consider –


(a) The sensitivity of the information (e.g., whether individuals would suffer harm or embarrassment as a result of the disclosure);


(b) The public interest in the disclosure;


(c) The rights and expectations of individuals to have their personal information kept confidential;


(d) The public’s interest in maintaining general standards of confidentiality of personal information; and


(e) The existence of safeguards against unauthorized redisclosure or use.


§ 401.145 Safeguards against unauthorized redisclosure or use.

(a) The FOIA does not authorize us to impose any restrictions on how information is used after we disclose it under that law. In applying FOIA principles, we consider whether the information will be adequately safeguarded against improper use or redisclosure. We must consider all the ways in which the recipient might use the information and how likely the recipient is to redisclose the information to other parties. Thus, before we disclose personal information we may consider such factors as –


(1) Whether only those individuals who have a need to know the information will obtain it;


(2) Whether appropriate measures to safeguard the information to avoid unwarranted use or misuse will be taken; and


(3) Whether we would be permitted to conduct on-site inspections to see whether the safeguards are being met.


(b) We feel that there is a strong public interest in sharing information with other agencies with programs having the same or similar purposes, so we generally share information with those agencies. However, since there is usually little or no public interest in disclosing information for disputes between two private parties or for other private or commercial purposes, we generally do not share information for these purposes.


§ 401.150 Compatible purposes.

(a) General. The Privacy Act allows us to disclose information maintained in a system of records without your consent to any other party if such disclosure is pursuant to a routine use published in the system’s notice of system of records. A “Routine use” must be compatible with the purpose for which SSA collected the information.


(b) Notice of routine use disclosures. A list of permissible routine use disclosures is included in every system of records notice published in the Federal Register.


(c) Determining compatibility – (1) Disclosure to carry out SSA programs. We disclose information for published routine uses necessary to carry out SSA’s programs.


(2) Disclosure to carry out programs similar to SSA programs. We may disclose information for the administration of other government programs. These disclosures are pursuant to published routine uses where the use is compatible with the purpose for which the information was collected. These programs generally meet the following conditions:


(i) The program is clearly identifiable as a Federal, State, or local government program.


(ii) The information requested concerns eligibility, benefit amounts, or other matters of benefit status in a Social Security program and is relevant to determining the same matters in the other program. For example, we disclose information to the Railroad Retirement Board for pension and unemployment compensation programs, to the Department of Veterans Affairs for its benefit programs, to worker’s compensation programs, to State general assistance programs and to other income maintenance programs at all levels of government. We also disclose for health maintenance programs like Medicaid and Medicare.


(iii) The information will be used for appropriate epidemiological or similar research purposes.


[72 FR 20941, Apr. 27, 2007]


§ 401.155 Law enforcement purposes.

(a) General. The Privacy Act allows us to disclose information for law enforcement purposes under certain conditions. Much of the information in our files is especially sensitive or very personal. Furthermore, participation in social security programs is mandatory, so people cannot limit what information is given to us. Therefore, we generally disclose information for law enforcement purposes only in limited situations. The Privacy Act allows us to disclose information if the head of the law enforcement agency makes a written request giving enough information to show that the conditions in paragraphs (b) or (c) of this section are met, what information is needed, and why it is needed. Paragraphs (b) and (c) of this section discuss the disclosures we generally make for these purposes.


(b) Serious crimes. SSA may disclose information for criminal law enforcement purposes where a violent crime such as murder or kidnapping has been committed and the individual about whom the information is being sought has been indicted or convicted of that crime.


(c) Criminal activity involving the social security program or another program with the same purposes. We disclose information when necessary to investigate or prosecute fraud or other criminal activity involving the social security program. We may also disclose information for investigation or prosecution of criminal activity in other income-maintenance or health-maintenance programs (e.g., other governmental pension programs, unemployment compensation, general assistance, Medicare or Medicaid) if the information concerns eligibility, benefit amounts, or other matters of benefit status in a social security program and is relevant to determining the same matters in the other program.


[62 FR 4143, Jan. 29, 1997, as amended at 72 FR 20941, Apr. 27, 2007]


§ 401.160 Health or safety.

The Privacy Act allows us to disclose information in compelling circumstances where an individual’s health or safety is affected. For example, if we learn that someone has been exposed to an excessive amount of radiation, we may notify that person and appropriate health officials. If we learn that someone has made a threat against someone else, we may notify that other person and law enforcement officials. When we make these disclosures, the Privacy Act requires us to send a notice of the disclosure to the last known address of the person whose record was disclosed.


§ 401.165 Statistical and research activities.

(a) General. Statistical and research activities often do not require information in a format that identifies specific individuals. Therefore, whenever possible, we release information for statistical or research purposes only in the form of aggregates or individual data that cannot be associated with a particular individual. The Privacy Act allows us to release records if there are safeguards that the record will be used solely as a statistical or research record and the individual cannot be identified from any information in the record.


(b) Safeguards for disclosure with identifiers. The Privacy Act also allows us to disclose data for statistical and research purposes in a form allowing individual identification, pursuant to published routine use, when the purpose is compatible with the purpose for which the record was collected. We will disclose personally identifiable information for statistical and research purposes if –


(1) We determine that the requestor needs the information in an identifiable form for a statistical or research activity, will use the information only for that purpose, and will protect individuals from unreasonable and unwanted contacts;


(2) The activity is designed to increase knowledge about present or alternative Social Security programs or other Federal or State income-maintenance or health-maintenance programs; or is used for research that is of importance to the Social Security program or the Social Security beneficiaries; or an epidemiological research project that relates to the Social Security program or beneficiaries; and


(3) The recipient will keep the information as a system of statistical records, will follow appropriate safeguards, and agrees to our on-site inspection of those safeguards so we can be sure the information is used or redisclosed only for statistical or research purposes. No redisclosure of the information may be made without SSA’s approval.


(c) Statistical record. A statistical record is a record in a system of records which is maintained only for statistical and research purposes, and which is not used to make any determination about an individual. We maintain and use statistical records only for statistical and research purposes. We may disclose a statistical record if the conditions in paragraph (b) of this section are met.


(d) Compiling of records. Where a request for information for statistical and research purposes would require us to compile records, and doing that would be administratively burdensome to ongoing SSA operations, we may decline to furnish the information.


[62 FR 4143, Jan. 29, 1997, as amended at 72 FR 20941, Apr. 27, 2007]


§ 401.170 Congress.

(a) We disclose information to either House of Congress. We also disclose information to any committee or subcommittee of either House, or to any joint committee of Congress or subcommittee of that committee, if the information is on a matter within the committee’s or subcommittee’s jurisdiction.


(b) We disclose to any member of Congress the information needed to respond to constituents’ requests for information about themselves (including requests from parents of minors, or legal guardians). However, these disclosures are subject to the restrictions in §§ 401.35 through 401.60.


§ 401.175 Government Accountability Office.

We disclose information to the Government Accountability Office when that agency needs the information to carry out its duties.


[72 FR 20941, Apr. 27, 2007]


§ 401.180 Disclosure under court order or other legal process.

(a) General. The Privacy Act permits us to disclose information when we are ordered to do so by a court of competent jurisdiction. When information is used in a court proceeding, it usually becomes part of the public record of the proceeding and its confidentiality often cannot be protected in that record. Much of the information that we collect and maintain in our records on individuals is especially sensitive. Therefore, we follow the rules in paragraph (d) of this section in deciding whether we may disclose information in response to an order from a court of competent jurisdiction. When we disclose pursuant to an order from a court of competent jurisdiction, and the order is a matter of public record, the Privacy Act requires us to send a notice of the disclosure to the last known address of the person whose record was disclosed.


(b) Court. For purposes of this section, a court is an institution of the judicial branch of the U.S. Federal government consisting of one or more judges who seek to adjudicate disputes and administer justice. (See 404.2(c)(6) of this chapter). Entities not in the judicial branch of the Federal government are not courts for purposes of this section.


(c) Court order. For purposes of this section, a court order is any legal process which satisfies all of the following conditions:


(1) It is issued under the authority of a Federal court;


(2) A judge or a magistrate judge of that court signs it;


(3) It commands SSA to disclose information; and


(4) The court is a court of competent jurisdiction.


(d) Court of competent jurisdiction. It is the view of SSA that under the Privacy Act the Federal Government has not waived sovereign immunity, which precludes state court jurisdiction over a Federal agency or official. Therefore, SSA will not honor state court orders as a basis for disclosure. State court orders will be treated in accordance with the other provisions of this part.


(e) Conditions for disclosure under a court order of competent jurisdiction. We disclose information in compliance with an order of a court of competent jurisdiction if –


(1) another section of this part specifically allows such disclosure, or


(2) SSA, the Commissioner of Social Security, or any officer or employee of SSA in his or her official capacity is properly a party in the proceeding, or


(3) disclosure of the information is necessary to ensure that an individual who is accused of criminal activity receives due process of law in a criminal proceeding under the jurisdiction of the judicial branch of the Federal government.


(f) In other circumstances. We may disclose information to a court of competent jurisdiction in circumstances other than those stated in paragraph (e) of this section. We will make our decision regarding disclosure by balancing the needs of a court while preserving the confidentiality of information. For example, we may disclose information under a court order that restricts the use and redisclosure of the information by the participants in the proceeding; we may offer the information for inspection by the court in camera and under seal; or we may arrange for the court to exclude information identifying individuals from that portion of the record of the proceedings that is available to the public. We will make these determinations in accordance with § 401.140.


(g) Other regulations on request for testimony, subpoenas and production of records in legal proceedings. See 20 CFR part 403 of this chapter for additional rules covering disclosure of information and records governed by this part and requested in connection with legal proceedings.


[72 FR 20941, Apr. 27, 2007]


§ 401.185 Other specific recipients.

In addition to disclosures we make under the routine use provision, we also release information to –


(a) The Bureau of the Census for purposes of planning or carrying out a census, survey, or related activity; and


(b) The National Archives of the United States if the record has sufficient historical or other value to warrant its continued preservation by the United States Government. We also disclose a record to the Administrator of General Services for a determination of whether the record has such a value.


§ 401.190 Deceased persons.

We do not consider the disclosure of information about a deceased person to be a clearly unwarranted invasion of that person’s privacy. However, in disclosing information about a deceased person, we follow the principles in § 401.115 to insure that the privacy rights of a living person are not violated.


§ 401.195 Situations not specified in this part.

If no other provision in this part specifically allows SSA to disclose information, the Commissioner or designee may disclose this information if not prohibited by Federal law. For example, the Commissioner or designee may disclose information necessary to respond to life threatening situations.


§ 401.200 Blood donor locator service.

(a) General. We will enter into arrangements with State agencies under which we will furnish to them at their request the last known personal mailing addresses (residence or post office box) of blood donors whose blood donations show that they are or may be infected with the human immunodeficiency virus which causes acquired immune deficiency syndrome. The State agency or other authorized person, as defined in paragraph (b) of this section, will then inform the donors that they may need medical care and treatment. The safeguards that must be used by authorized persons as a condition to receiving address information from the Blood Donor Locator Service are in paragraph (g) of this section, and the requirements for a request for address information are in paragraph (d) of this section.


(b) Definitions. State means the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Commonwealth of Northern Marianas, and the Trust Territory of the Pacific Islands.


Authorized person means –


(1) Any agency of a State (or of a political subdivision of a State) which has duties or authority under State law relating to the public health or otherwise has the duty or authority under State law to regulate blood donations; and


(2) Any entity engaged in the acceptance of blood donations which is licensed or registered by the Food and Drug Administration in connection with the acceptance of such blood donations, and which provides for –


(i) The confidentiality of any address information received pursuant to the rules in this part and section 1141 of the Social Security Act and related blood donor records;


(ii) Blood donor notification procedures for individuals with respect to whom such information is requested and a finding has been made that they are or may be infected with the human immunodeficiency virus; and


(iii) Counseling services for such individuals who have been found to have such virus. New counseling programs are not required, and an entity may use existing counseling programs or referrals to provide these services.


Related blood donor records means any record, list, or compilation established in connection with a request for address information which indicates, directly or indirectly, the identity of any individual with respect to whom a request for address information has been made pursuant to the rules in this part.


(c) Use of social security number for identification. A State or an authorized person in the State may require a blood donor to furnish his or her social security number when donating blood. The number may then be used by an authorized person to identify and locate a donor whose blood donation indicates that he or she is or may be infected with the human immunodeficiency virus.


(d) Request for address of blood donor. An authorized person who has been unable to locate a blood donor at the address he or she may have given at the time of the blood donation may request assistance from the State agency which has arranged with us to participate in the Blood Donor Locator Service. The request to the Blood Donor Locator Service must –


(1) Be in writing;


(2) Be from a participating State agency either on its own behalf as an authorized person or on behalf of another authorized person;


(3) Indicate that the authorized person meets the confidentiality safeguards of paragraph (g) of this section; and


(4) Include the donor’s name and social security number, the addresses at which the authorized person attempted without success to contact the donor, the date of the blood donation if available, a statement that the donor has tested positive for the human immunodeficiency virus according to the latest Food and Drug Administration standards or that the history of the subsequent use of the donated blood or blood products indicates that the donor has or may have the human immunodeficiency virus, and the name and address of the requesting blood donation facility.


(e) SSA response to request for address. After receiving a request that meets the requirements of paragraph (d) of this section, we will search our records for the donor’s latest personal mailing address. If we do not find a current address, we will request that the Internal Revenue Service search its tax records and furnish us any personal mailing address information from its files, as required under section 6103(m)(6) of the Internal Revenue Code. After completing these searches, we will provide to the requesting State agency either the latest mailing address available for the donor or a response stating that we do not have this information. We will then destroy the records or delete all identifying donor information related to the request and maintain only the information that we will need to monitor the compliance of authorized persons with the confidentiality safeguards contained in paragraph (g) of this section.


(f) SSA refusal to furnish address. If we determine that an authorized person has not met the requirements of paragraphs (d) and (g) of this section, we will not furnish address information to the State agency. In that case, we will notify the State agency of our determination, explain the reasons for our determination, and explain that the State agency may request administrative review of our determination. The Commissioner of Social Security or a delegate of the Commissioner will conduct this review. The review will be based on the information of record and there will not be an opportunity for an oral hearing. A request for administrative review, which may be submitted only by a State agency, must be in writing. The State agency must send its request for administrative review to the Commissioner of Social Security, 6401 Security Boulevard, Baltimore, MD 21235, within 60 days after receiving our notice refusing to give the donor’s address. The request for review must include supporting information or evidence that the requirements of the rules in this part have been met. If we do not furnish address information because an authorized person failed to comply with the confidentiality safeguards of paragraph (g) of this section, the State agency will have an opportunity to submit evidence that the authorized person is now in compliance. If we then determine, based on our review of the request for administrative review and the supporting evidence, that the authorized person meets the requirements of the rules in this part, we will respond to the address request as provided in paragraph (e) of this section. If we determine on administrative review that the requirements have not been met, we will notify the State agency in writing of our decision. We will make our determination within 30 days after receiving the request for administrative review, unless we notify the State agency within this 30-day time period that we will need additional time. Our determination on the request for administrative review will give the findings of fact, the reasons for the decision, and what actions the State agency should take to ensure that it or the blood donation facility is in compliance with the rules in this part.


(g) Safeguards to ensure confidentiality of blood donor records. We will require assurance that authorized persons have established and continue to maintain adequate safeguards to protect the confidentiality of both address information received from the Blood Donor Locator Service and related blood donor records. The authorized person must, to the satisfaction of the Secretary –


(1) Establish and maintain a system for standardizing records which includes the reasons for requesting the addresses of blood donors, dates of the requests, and any disclosures of address information;


(2) Store blood donors’ addresses received from the Blood Donor Locator Service and all related blood donor records in a secure area or place that is physically safe from access by persons other than those whose duties and responsibilities require access;


(3) Restrict access to these records to authorized employees and officials who need them to perform their official duties related to notifying blood donors who are or may be infected with the human immunodeficiency virus that they may need medical care and treatment;


(4) Advise all personnel who will have access to the records of the confidential nature of the information, the safeguards required to protect the information, and the civil and criminal sanctions for unauthorized use or disclosure of the information;


(5) Destroy the address information received from the Blood Donor Locator Service, as well as any records established in connection with the request which indicate directly or indirectly the identity of the individual, after notifying or attempting to notify the donor at the address obtained from the Blood Donor Locator Service; and


(6) Upon request, report to us the procedures established and utilized to ensure the confidentiality of address information and related blood donor records. We reserve the right to make onsite inspections to ensure that these procedures are adequate and are being followed and to request such information as we may need to ensure that the safeguards required in this section are being met.


(h) Unauthorized disclosure. Any official or employee of the Federal Government, a State, or a blood donation facility who discloses blood donor information, except as provided for in this section or under a provision of law, will be subject to the same criminal penalty as provided in section 7213(a) of the Internal Revenue Code of 1986 for the unauthorized disclosure of tax information.


Appendix A to Part 401 – Employee Standards of Conduct

(a) General. All SSA employees are required to be aware of their responsibilities under the Privacy Act of 1974, 5 U.S.C. 552a. Regulations implementing the Privacy Act are set forth in this part. Instruction on the requirements of the Act and regulation shall be provided to all new employees of SSA. In addition, supervisors shall be responsible for assuring that employees who are working with systems of records or who undertake new duties which require the use of systems of records are informed of their responsibilities. Supervisors shall also be responsible for assuring that all employees who work with such systems of records are periodically reminded of the requirements of the Privacy Act and are advised of any new provisions or interpretations of the Act.


(b) Penalties. (1) All employees must guard against improper disclosure of records which are governed by the Privacy Act. Because of the serious consequences of improper invasions of personal privacy, employees may be subject to disciplinary action and criminal prosecution for knowing and willful violations of the Privacy Act and regulation. In addition, employees may also be subject to disciplinary action for unknowing or unwillful violations, where the employee had notice of the provisions of the Privacy Act and regulations and failed to inform himself or herself sufficiently or to conduct himself or herself in accordance with the requirements to avoid violations.


(2) SSA may be subjected to civil liability for the following actions undertaken by its employees:


(a) Making a determination under the Privacy Act and §§ 401.65 and 401.70 not to amend an individual’s record in accordance with his or her request, or failing to make such review in conformity with those provisions;


(b) Refusing to comply with an individual’s request for notification of or access to a record pertaining to him or her;


(c) Failing to maintain any record pertaining to any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such a record, and consequently makes a determination which is adverse to the individual; or


(d) Failing to comply with any other provision of the Act or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual.


(3) An employee may be personally subject to criminal liability as set forth below and in 5 U.S.C. 552a (i):


(a) Willful disclosure. Any officer or employee of SSA, who by virtue of his employment or official position, has possession of, or access to, agency records which contain individually identifiable information the disclosure of which is prohibited by the Privacy Act or by rules or regulations established thereunder, and who, knowing that disclosure of the specific material is so prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and may be fined not more than $5,000.


(b) Notice requirements. Any officer or employee of SSA who willfully maintains a system of records without meeting the notice requirements [of the Privacy Act] shall be guilty of a misdemeanor and may be fined not more than $5,000.


(c) Rules governing employees not working with systems of records. Employees whose duties do not involve working with systems of records will not generally disclose to any one, without specific authorization from their supervisors, records pertaining to employees or other individuals which by reason of their official duties are available to them. Notwithstanding the above, the following records concerning Federal employees are a matter of public record and no further authorization is necessary for disclosure:


(1) Name and title of individual.


(2) Grade classification or equivalent and annual rate of salary.


(3) Position description.


In addition, employees shall disclose records which are listed in SSA’s Freedom of Information Regulation as being available to the public. Requests for other records will be referred to the responsible SSA Freedom of Information Officer. This does not preclude employees from discussing matters which are known to them personally, and without resort to a record, to official investigators of Federal agencies for official purposes such as suitability checks, Equal Employment Opportunity investigations, adverse action proceedings, grievance proceedings, etc.


(d) Rules governing employees whose duties require use or reference to systems of records. Employees whose official duties require that they refer to, maintain, service, or otherwise deal with systems of records (hereinafter referred to as “Systems Employees”) are governed by the general provisions. In addition, extra precautions are required and systems employees are held to higher standards of conduct.


(1) Systems Employees shall:


(a) Be informed with respect to their responsibilities under the Privacy Act;


(b) Be alert to possible misuses of the system and report to their supervisors any potential or actual use of the system which they believe is not in compliance with the Privacy Act and regulation;


(c) Disclose records within SSA only to an employee who has a legitimate need to know the record in the course of his or her official duties;


(d) Maintain records as accurately as practicable.


(e) Consult with a supervisor prior to taking any action where they are in doubt whether such action is in conformance with the Act and regulation.


(2) Systems employees shall not:


(a) Disclose in any form records from a system of records except (1) with the consent or at the request of the subject individual; or (2) where its disclosure is permitted under § 401.110.


(b) Permit unauthorized individuals to be present in controlled areas. Any unauthorized individuals observed in controlled areas shall be reported to a supervisor or to the guard force.


(c) Knowingly or willfully take action which might subject SSA to civil liability.


(d) Make any arrangements for the design, development, or operation of any system of records without making reasonable effort to provide that the system can be maintained in accordance with the Act and regulation.


(e) Contracting officers. In addition to any applicable provisions set forth above, those employees whose official duties involve entering into contracts on behalf of SSA shall also be governed by the following provisions:


(1) Contracts for design, or development of systems and equipment. The contracting officer shall not enter into any contract for the design or development of a system of records, or for equipment to store, service or maintain a system of records unless the contracting officer has made reasonable effort to ensure that the product to be purchased is capable of being used without violation of the Privacy Act or the regulations in this part. He shall give special attention to provision of physical safeguards.


(2) Contracts for the operation of systems of records. The Contracting Officer, in conjunction with other officials whom he feels appropriate, shall review all proposed contracts providing for the operation of systems of records prior to execution of the contracts to determine whether operation of the system of records is for the purpose of accomplishing a Department function. If it is determined that the operation of the system is to accomplish an SSA function, the contracting officer shall be responsible for including in the contract appropriate provisions to apply the provisions of the Privacy Act and regulation to the system, including prohibitions against improper release by the contractor, his employees, agents, or subcontractors.


(3) Other service contracts. Contracting officers entering into general service contracts shall be responsible for determining the appropriateness of including provisions in the contract to prevent potential misuse (inadvertent or otherwise) by employees, agents, or subcontractors of the contractor.


(f) Rules governing SSA officials responsible for managing systems of records. In addition to the requirements for Systems Employees, SSA officials responsible for managing systems of records as described in § 401.40(c) (system managers) shall:


(1) Respond to all requests for notification of or access, disclosure, or amendment of records in a timely fashion in accordance with the Privacy Act and regulation;


(2) Make any amendment of records accurately and in a timely fashion;


(3) Inform all persons whom the accounting records show have received copies of the record prior to the amendments of the correction; and


(4) Associate any statement of disagreement with the disputed record, and


(a) Transmit a copy of the statement to all persons whom the accounting records show have received a copy of the disputed record, and


(b) Transmit that statement with any future disclosure.


[62 FR 4143, Jan. 29, 1997, as amended at 72 FR 69617, Dec. 10, 2007]


PART 402 – AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC


Authority:Secs. 205, 702(a)(5), and 1106 of the Social Security Act; (42 U.S.C. 405, 902(a)(5), and 1306); 5 U.S.C. 552 and 552a; 8 U.S.C. 1360; 18 U.S.C. 1905; 26 U.S.C. 6103; 30 U.S.C. 923b; 31 U.S.C. 9701; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235.


Source:62 FR 4154, Jan. 29, 1997, unless otherwise noted.

§ 402.5 Scope and purpose.

The rules in this part relate to the availability to the public, pursuant to the Freedom of Information Act (FOIA) 5 U.S.C. 552, of records of the Social Security Administration (SSA). They describe how to make a FOIA request; who can release records and who can decide not to release; how much time it should take to make a determination regarding release; what fees may be charged; what records are available for public inspection; why some records are not released; and your right to appeal and then go to court if we refuse to release records. The rules in this part do not revoke, modify, or supersede the regulations of SSA relating to disclosure of information in part 401 of this chapter.


§ 402.10 Policy.

As a general policy, SSA follows a balanced approach in administering FOIA. We not only recognize the right of public access to information in the possession of SSA, but also protect the integrity of internal processes. In addition, we recognize the legitimate interests of organizations or persons who have submitted records to SSA or who would otherwise be affected by release of records. For example, we have no discretion to release certain records, such as trade secrets and confidential commercial information, prohibited from release by law. This policy calls for the fullest responsible disclosure consistent with those requirements of administrative necessity and confidentiality which are recognized in the FOIA.


§ 402.15 Relationship between the FOIA and the Privacy Act of 1974.

(a) Coverage. The FOIA and the rules in this part apply to all SSA records. The Privacy Act, 5 U.S.C. 552a, applies to records that are about individuals, but only if the records are in a system of records. “Individuals” and “system of records” are defined in the Privacy Act and in 20 CFR 401.25.


(b) Requesting your own records. If you are an individual and request records, then to the extent you are requesting your own records in a system of records, we will handle your request under the Privacy Act. If there is any record that we need not release to you under those provisions, we will also consider your request under the FOIA and this rule, and we will release the record to you if the FOIA requires it.


(c) Requesting another individual’s record. Whether or not you are an individual, if you request records that are about an individual (other than yourself) and that are in a system of records, we will handle your request under the FOIA and the rules in this part. However, if our disclosure in response to your request would be permitted by the Privacy Act’s disclosure provision, (5 U.S.C. 552a(b)), for reasons other than the requirements of the FOIA, and if we decide to make the disclosure, then we will not handle your request under the FOIA and the rules in this part. For example, when we make routine use disclosures pursuant to requests, we do not handle them under the FOIA and the rules in this part. (“Routine use” is defined in the Privacy Act and in 20 CFR 401.25.) If we handle your request under the FOIA and the rules in this part and the FOIA does not require releasing the record to you, then the Privacy Act may prohibit the release and remove our discretion to release.


§ 402.20 Requests not handled under the FOIA.

(a) We will not handle your request under the FOIA and the regulations in this part to the extent it asks for records that are currently available, either from SSA or from another part of the Federal Government, under a separate statute that provides specific activity for charging fees for those records. For example, we will not handle your request under the FOIA and the regulations in this part to the extent it asks for detailed earnings statements under the Social Security program.


(b) We will not handle your request under the FOIA and the regulations in this part if you are seeking a record that is distributed by SSA as part of its regular program activity, for example, public information leaflets distributed by SSA.


§ 402.25 Referral of requests outside of SSA.

If you request records that were created by, or provided to us by, another Federal agency, and if that agency asserts control over the records, we may refer the records and your request to that agency. We may likewise refer requests for classified records to the agency that classified them. In these cases, the other agency will process and respond to your request, to the extent it concerns those records, under that agency’s regulation, and you need not make a separate request to that agency. We will notify you when we refer your request to another agency.


§ 402.30 Definitions.

As used in this part,


Agency means any executive department, military department, government corporation, government controlled corporation, or other establishment in the executive branch of the Federal Government, or any independent regulatory agency. A private organization is not an agency even if it is performing work under contract with the Government or is receiving Federal financial assistance. Grantee and contractor records are not subject to the FOIA unless they are in the possession or under the control of SSA or its agents. Solely for the purpose of disclosure under the FOIA, we consider records of individual beneficiaries located in the State Disability Determination Services (DDS) to be agency records.


Commercial use means, when referring to a request, that the request is from or on behalf of one who seeks information for a use or purpose that furthers the commercial, trade, or profit interests of the requester or of a person on whose behalf the request is made. Whether a request is for a commercial use depends on the purpose of the request and the use to which the records will be put. The identity of the requester (individual, non-profit corporation, for-profit corporation) and the nature of the records, while in some cases indicative of that purpose or use, are not necessarily determinative. When a request is from a representative of the news media, a purpose or use supporting the requester’s news dissemination function is not a commercial use.


Duplication means the process of making a copy of a record and sending it to the requester, to the extent necessary to respond to the request. Such copies include paper copy, microfilm, audio-visual materials, and magnetic tapes, cards, and discs.


Educational institution means a preschool, elementary or secondary school, institution of undergraduate or graduate higher education, or institution of professional or vocational education, which operates a program of scholarly research.


Freedom of Information Act or FOIA means 5 U.S.C. 552.


Freedom of Information Officer means an SSA official who has been delegated the authority to authorize disclosure of or withhold records and assess, waive, or reduce fees in response to FOIA requests.


Non-commercial scientific institution means an institution that is not operated substantially for purposes of furthering its own or someone else’s business, trade, or profit interests, and that is operated for purposes of conducting scientific research whose results are not intended to promote any particular product or industry.


Records means any information maintained by an agency, regardless of forms or characteristics, that is made or received in connection with official business. This includes handwritten, typed, or printed documents (such as memoranda, books, brochures, studies, writings, drafts, letters, transcripts, and minutes) and material in other forms, such as punchcards; magnetic tapes; cards; computer discs or other electronic formats; paper tapes; audio or video recordings; maps; photographs; slides; microfilm; and motion pictures. It does not include objects or articles such as exhibits, models, equipment, and duplication machines, audiovisual processing materials, or computer software. It does not include personal records of an employee, or books, magazines, pamphlets, or other reference material in formally organized and officially designated SSA libraries, where such materials are available under the rules of the particular library.


Representative of the news media means a person actively gathering information for an entity organized and operated to publish or broadcast news to the public. News media entities include television and radio broadcasters, publishers of periodicals who distribute their products to the general public or who make their products available for purchase or subscription by the general public, and entities that may disseminate news through other media (e.g., electronic dissemination of text). We will treat freelance journalists as representatives of a news media entity if they can show a likelihood of publication through such an entity. A publication contract is such a basis, and the requester’s past publication record may show such a basis.


Request means asking for records, whether or not you refer specifically to the FOIA. Requests from Federal agencies and court orders for documents are not included within this definition.


Review means, when used in connection with processing records for a commercial use request, examining the records to determine what portions, if any, may be withheld, and any other processing that is necessary to prepare the records for release. It includes only the examining and processing that are done the first time we analyze whether a specific exemption applies to a particular record or portion of a record. It does not include examination done in the appeal stage with respect to an exemption that was applied at the initial request stage. However, if we initially withhold a record under one exemption, and on appeal we determine that that exemption does not apply, then examining the record in the appeal stage for the purpose of determining whether a different exemption applies is included in review. It does not include the process of researching or resolving general legal or policy issues regarding exemptions.


Search means looking for records or portions of records responsive to a request. It includes reading and interpreting a request, and also page-by-page and line-by-line examination to identify responsive portions of a document. However, it does not include line-by-line examination where merely duplicating the entire page would be a less expensive and quicker way to comply with the request.


[62 FR 4154, Jan. 29, 1997, as amended at 63 FR 35132, June 29, 1998, 66 FR 2809, Jan. 12, 2001]


§ 402.35 Publication.

(a) Methods of publication. Materials we are required to publish pursuant to the provisions of 5 U.S.C. 552 (a)(1) and (a)(2), we publish in one of the following ways:


(1) By publication in the Federal Register of Social Security Administration regulations, and by their subsequent inclusion in the Code of Federal Regulations;


(2) By publication in the Federal Register of appropriate general notices;


(3) By other forms of publication, when incorporated by reference in the Federal Register with the approval of the Director of the Federal Register; and


(4) By publication in the “Social Security Rulings” of indexes of precedential social security orders and opinions issued in the adjudication of claims, statements of policy and interpretations which have been adopted but have not been published in the Federal Register. The “Social Security Rulings” may be purchased through the Government Printing Office (See § 402.40).


(b) Publication of rulings. Although not required pursuant to 5 U.S.C. 552 (a)(1) and (a)(2), we publish the following rulings in the Federal Register as well as by other forms of publication:


(1) We publish Social Security Rulings in the Federal Register under the authority of the Commissioner of Social Security. They are binding on all components of the Social Security Administration. These rulings represent precedent final opinions and orders and statements of policy and interpretations that we have adopted.


(2) We publish Social Security Acquiescence Rulings in the Federal Register under the authority of the Commissioner of Social Security. They are binding on all components of the Social Security Administration, except with respect to claims subject to the relitigation procedures established in 20 CFR 404.985(c), 410.670c, and 416.1485(c). For a description of Social Security Acquiescence Rulings, see 20 CFR 404.985(b), 410.670c(b), and 416.1485(b) of this title.


(c) Availability for inspection. To the extent practicable and to further assist the public, we make available for inspection at the address specified in § 402.135 those materials which are published in the Federal Register pursuant to 5 U.S.C. 552(a)(1).


(d) Availability by telecommunications. To the extent practicable, we will make available by means of computer telecommunications the indices and other records that are available for inspection.


[62 FR 4154, Jan. 29, 1997, as amended at 63 FR 35132, June 29, 1998; 65 FR 16813, Mar. 30, 2000; 72 FR 36360, July 3, 2007]


§ 402.40 Publications for sale.

The following publications containing information pertaining to the program, organization, functions, and procedures of the Social Security Administration may be purchased from the Superintendent of Documents, Government Printing Office, Washington, DC 20402:


(a) Title 20, parts 400-499 of the Code of Federal Regulations.


(b) Federal Register issues.


(c) Compilation of the Social Security Laws.


(d) Social Security Rulings.


(e) Social Security Handbook. The information in the Handbook is not of precedent or interpretative force.


(f) Social Security Bulletin.


(g) Social Security Acquiescence Rulings.


(h) SSA Publications on CD-ROM.


[62 FR 4154, Jan. 29, 1997, as amended at 63 FR 35132, June 29, 1998]


§ 402.45 Availability of records.

(a) What records are available. 5 U.S.C. 552, also known as the FOIA, permits any person to see, and get a copy of, any Federal agency’s records unless the material is exempt from mandatory disclosure as described in § 402.70 of this part.


(b) FOIA. Under the FOIA, we are also required to make available to the public the instructional manuals issued to our employees, general statements of policy, and other materials which are used in processing claims and which are not published in the Federal Register, and an index of these manuals and materials.


(c) Record citation as precedent. We will not use or cite any record described in paragraph (b) of this section as a precedent for an action against a person unless we have indexed the record and published it or made it available, or unless the person has timely notice of the record.


(d) Electronic Reading Room. We will prepare an index of records which have become or are likely to become the subject of subsequent requests. The index, and, to the extent practicable, the records will be made available on the Internet or by other computer telecommunications means.


(e) Federal employees. We will not disclose information when the information sought is lists of telephone numbers and/or duty stations of one or more Federal employees if the disclosure, as determined at the discretion of the official responsible for custody of the information, would place employee(s) at risk of injury or other harm. Also, we will not disclose the requested information if the information is protected from mandatory disclosure under an exemption of the Freedom of Information Act.


[62 FR 4154, Jan. 29, 1997, as amended at 63 FR 35132, June 29, 1998; 72 FR 69617, Dec. 10, 2007]


§ 402.50 Availability of administrative staff manuals.

All administrative staff manuals of the Social Security Administration and instructions to staff personnel which contain policies, procedures, or interpretations that affect the public are available for inspection and copying. A complete listing of such materials is published in the Index of Administrative Staff Manuals and Instructions. These manuals are generally not printed in a sufficient quantity to permit sale or other general distribution to the public. Selected material is maintained at district offices and field offices and may be inspected there. See §§ 402.55 and 402.60 for a listing of this material.


§ 402.55 Materials available at district offices and branch offices.

(a) Materials available for inspection. The following are available or will be made available for inspection at the district offices and branch offices:


(1) Compilation of the Social Security Laws.


(2) Social Security Administration regulations under the retirement, survivors, disability, and supplemental security income programs, i.e., 20 CFR parts 401, 402, 404, 416, and 422; and the Social Security Administration’s regulations under part B of title IV (Black Lung Benefits) of the Federal Coal Mine Health and Safety Act of 1969, 20 CFR part 410.


(3) Social Security Rulings.


(4) Social Security Handbook.


(5) Social Security Acquiescence Rulings.


(b) Materials available for inspection and copying. The following materials are available or will be made available for inspection and copying at the district offices and branch offices (fees may be applicable per §§ 402.155 through 402.185):


(1) SSA Program Operations Manual System.


(2) SSA Organization Manual.


(3) Handbook for State Social Security Administrators.


(4) Indexes to the materials listed in paragraph (a) of this section and in this paragraph (b) and an index to the Hearings, Appeals and Litigation Law (HALLEX) manual.


(5) Index of Administrative Staff Manuals and Instructions.


§ 402.60 Materials in field offices of the Office of Hearings and Appeals.

(a) Materials available for inspection. The following materials are available for inspection in the field offices of the Office of Hearings and Appeals:


(1) Regulations of the Social Security Administration (see § 402.55(a)(2)).


(2) Title 5, United States Code.


(3) Compilation of the Social Security Laws.


(4) Social Security Rulings.


(5) Social Security Handbook.


(6) Social Security Acquiescence Rulings.


(b) The Hearings, Appeals and Litigation Law (HALLEX) manual is available for inspection and copying in the field offices of the Office of Hearings and Appeals (fees may be applicable per §§ 402.155 through 402.185).


§ 402.65 Health care information.

We have some information about health care programs under titles XVIII and XIX (Medicare and Medicaid) of the Social Security Act. We follow the rules in 42 CFR part 401 in determining whether to provide any portion of it to a requester.


§ 402.70 Reasons for withholding some records.

Section 552(b) of the Freedom of Information Act contains nine exemptions to the mandatory disclosure of records. We describe these exemptions in §§ 402.75 through 402.110 of this part and explain how we apply them to disclosure determinations. (In some cases more than one exemption may apply to the same document.) Information obtained by the agency from any individual or organization, furnished in reliance on a provision for confidentiality authorized by applicable statute or regulation, will not be disclosed, to the extent it can be withheld under one of these exemptions. This section does not itself authorize the giving of any pledge of confidentiality by any officer or employee of the agency.


§ 402.75 Exemption one for withholding records: National defense and foreign policy.

We are not required to release records that, as provided by FOIA, are “(a) specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and (b) are in fact properly classified pursuant to such Executive Order.” Executive Order No. 12958 (1995) (3 CFR, 1987 Comp., p. 235) provides for such classification. When the release of certain records may adversely affect U.S. relations with foreign countries, we usually consult with officials of those countries or officials of the Department of State. Also, we may on occasion have in our possession records classified by some other agency. We may refer your request for such records to the agency that classified them and notify you that we have done so.


§ 402.80 Exemption two for withholding records: Internal personnel rules and practices.

We are not required to release records that are “related solely to the internal personnel rules and practices of an agency.” Under this exemption, we may withhold routine internal agency practices and procedures. For example, we may withhold guard schedules and rules governing parking facilities or lunch periods. Also under this exemption, we may withhold internal records whose release would help some persons circumvent the law or agency regulations. For example, we ordinarily do not disclose manuals that instruct our investigators or auditors how to investigate possible violations of law, to the extent that this release would help some persons circumvent the law.


§ 402.85 Exemption three for withholding records: Records exempted by other statutes.

We are not required to release records if another statute specifically allows or requires us to withhold them. We may use another statute to justify withholding only if it absolutely prohibits disclosure or if it sets forth criteria to guide our decision on releasing or identifies particular types of material to be withheld. We often use this exemption to withhold information regarding a worker’s earnings which is tax return information under section 6103 of the Internal Revenue Code.


§ 402.90 Exemption four for withholding records: Trade secrets and confidential commercial or financial information.

We will withhold trade secrets and commercial or financial information that is obtained from a person and is privileged or confidential.


(a) Trade secrets. A trade secret is a secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort. There must be a direct relationship between the trade secret and the productive process.


(b) Commercial or financial information. We will not disclose records whose information is “commercial or financial,” is obtained from a person, and is “privileged or confidential.”


(1) Information is “commercial or financial” if it relates to businesses, commerce, trade, employment, profits, or finances (including personal finances). We interpret this category broadly.


(2) Information is “obtained from a person” if SSA or another agency has obtained it from someone outside the Federal Government or from someone within the Government who has a commercial or financial interest in the information. “Person” includes an individual, partnership, corporation, association, State or foreign government, or other organization. Information is not “obtained from a person” if it is generated by SSA or another Federal agency. However, information is “obtained from a person” if it is provided by someone, including but not limited to an agency employee, who retains a commercial or financial interest in the information.


(3) Information is “privileged” if it would ordinarily be protected from disclosure in civil discovery by a recognized evidentiary privilege, such as the attorney-client privilege or the work product privilege. Information may be privileged for this purpose under a privilege belonging to a person outside the government, unless the providing of the information to the government rendered the information no longer protectable in civil discovery.


(4) Information is “confidential” if it meets one of the following tests:


(i) Disclosure may impair the government’s ability to obtain necessary information in the future;


(ii) Disclosure would substantially harm the competitive position of the person who submitted the information;


(iii) Disclosure would impair other government interests, such as program effectiveness and compliance; or


(iv) Disclosure would impair other private interests, such as an interest in controlling availability of intrinsically valuable records, which are sold in the market by their owner.


(c) Analysis under tests in this section. The following questions may be relevant in analyzing whether a record meets one or more of the above tests:


(1) Is the information of a type customarily held in strict confidence and not disclosed to the public by the person to whom it belongs?


(2) What is the general custom or usage with respect to such information in the relevant occupation or business?


(3) How many, and what types of, individuals have access to the information?


(4) What kind and degree of financial injury can be expected if the information is disclosed?


(d) Designation of certain confidential information. A person who submits records to the government may designate part or all of the information in such records as exempt from disclosure under Exemption 4 of the FOIA. The person may make this designation either at the time the records are submitted to the government or within a reasonable time thereafter. The designation must be in writing. Where a legend is required by a request for proposals or request for quotations, pursuant to 48 CFR 352.215-12, then that legend is necessary for this purpose. Any such designation will expire ten years after the records were submitted to the government.


(e) Predisclosure notification. The procedures in this paragraph apply to records on which the submitter has designated information as provided in paragraph (d) of this section. They also apply to records that were submitted to the government where we have substantial reason to believe that information in the records could reasonably be considered exempt under Exemption 4. Certain exceptions to these procedures are stated in paragraph (f) of this section.


(1) When we receive a request for such records, and we determine that we may be required to disclose them, we will make reasonable efforts to notify the submitter about these facts. The notice will include a copy of the request, and it will inform the submitter about the procedures and time limits for submission and consideration of objections to disclosure. If we must notify a large number of submitters, we may do this by posting or publishing a notice in a place where the submitters are reasonably likely to become aware of it.


(2) The submitter has five working days from receipt of the notice to object to disclosure of any part of the records and to state all bases for its objections.


(3) We will give consideration to all bases that have been timely stated by the submitter. If we decide to disclose the records, we will notify the submitter in writing. This notice will briefly explain why we did not sustain its objections. We will include with the notice a copy of the records about which the submitter objected, as we propose to disclose them. The notice will state that we intend to disclose the records five working days after the submitter receives the notice unless we are ordered by a United States District Court not to release them.


(4) When a requester files suit under the FOIA to obtain records covered by this paragraph, we will promptly notify the submitter.


(5) Whenever we send a notice to a submitter under paragraph (e)(1) of this section, we will notify the requester that we are giving the submitter a notice and an opportunity to object. Whenever we send a notice to a submitter under paragraph (e)(3) of this section, we will notify the requester of this fact.


(f) Exceptions to predisclosure notification. The notice requirements in paragraph (e) of this section do not apply in the following situations:


(1) We decided not to disclose the records;


(2) The information has previously been published or made generally available;


(3) Disclosure is required by a regulation, issued after notice and opportunity for public comment, that specifies narrow categories of records that are to be disclosed under the FOIA, but in this case a submitter may still designate records as described in paragraph (d) of this section, and in exceptional cases, we may, at our discretion, follow the notice procedures in paragraph (e) of this section; or


(4) The designation appears to be obviously frivolous, but in this case we will still give the submitter the written notice required by paragraph (e)(3) of this section (although this notice need not explain our decision or include a copy of the records), and we will notify the requester as described in paragraph (e)(5) of this section.


§ 402.95 Exemption five for withholding records: Internal memoranda.

This exemption covers internal government communications and notes that fall within a generally recognized evidentiary privilege. Internal government communications include an agency’s communications with an outside consultant or other outside person, with a court, or with Congress, when those communications are for a purpose similar to the purpose of privileged intra-agency communications. Some of the most-commonly applicable privileges are described in the following paragraphs:


(a) Deliberative process privilege. This privilege protects predecisional deliberative communications. A communication is protected under this privilege if it was made before a final decision was reached on some question of policy and if it expressed recommendations or opinions on that question. The purpose of the privilege is to prevent injury to the quality of the agency decisionmaking process by encouraging open and frank internal policy discussions, by avoiding premature disclosure of policies not yet adopted, and by avoiding the public confusion that might result from disclosing reasons that were not in fact the ultimate grounds for an agency’s decision. Purely factual material in a deliberative document is within this privilege only if it is inextricably intertwined with the deliberative portions so that it cannot reasonably be segregated, if it would reveal the nature of the deliberative portions, or if its disclosure would in some other way make possible an intrusion into the decisionmaking process. We will release purely factual material in a deliberative document unless that material is otherwise exempt. The privilege continues to protect predecisional documents even after a decision is made.


(b) Attorney work product privilege. This privilege protects documents prepared by or for an agency, or by or for its representative (typically, our attorneys) in anticipation of litigation or for trial. It includes documents prepared for purposes of administrative adjudications as well as court litigation. It includes documents prepared by program offices as well as by attorneys. It includes factual material in such documents as well as material revealing opinions and tactics. Finally, the privilege continues to protect the documents even after the litigation is closed.


(c) Attorney-client communication privilege. This privilege protects confidential communications between a lawyer and an employee or agent of the Government where there is an attorney-client relationship between them (typically, where the lawyer is acting as attorney for the agency and the employee is communicating on behalf of the agency) and where the employee has communicated information to the attorney in confidence in order to obtain legal advice or assistance.


§ 402.100 Exemption six: Clearly unwarranted invasion of personal privacy.

(a) Documents affected. We may withhold records about individuals if disclosure would constitute a clearly unwarranted invasion of their personal privacy.


(b) Balancing test. In deciding whether to release records to you that contain personal or private information about someone else, we weigh the foreseeable harm of invading a person’s privacy against the public interest in disclosure. In determining whether disclosure would be in the public interest, we will consider whether disclosure of the requested information would shed light on how a Government agency performs its statutory duties. However, in our evaluation of requests for records we attempt to guard against the release of information that might involve a violation of personal privacy because of a requester being able to “read between the lines” or piece together items that would constitute information that normally would be exempt from mandatory disclosure under Exemption Six.


(c) Examples. Some of the information that we frequently withhold under Exemption Six is: Home addresses, ages, and minority group status of our employees or former employees; social security numbers; medical information about individuals who have filed a claim for disability benefits; names and addresses of individual beneficiaries of our programs, or benefits such individuals receive; earnings records, claim files, and other personal information SSA maintains.


[62 FR 4154, Jan. 29, 1997, as amended at 63 FR 35132, June 29, 1998]


§ 402.105 Exemption seven for withholding records: Law enforcement.

We are not required to disclose information or records that the government has compiled for law enforcement purposes. The records may apply to actual or potential violations of either criminal or civil laws or regulations. We can withhold these records only to the extent that releasing them would cause harm in at least one of the following situations:


(a) Enforcement proceedings. We may withhold information whose release could reasonably be expected to interfere with prospective or ongoing law enforcement proceedings. Investigations of fraud and mismanagement, employee misconduct, and civil rights violations may fall into this category. In certain cases – such as when a fraud investigation is likely – we may refuse to confirm or deny the existence of records that relate to the violations in order not to disclose that an investigation is in progress, or may be conducted.


(b) Fair trial or impartial adjudication. We may withhold records whose release would deprive a person of a fair trial or an impartial adjudication because of prejudicial publicity.


(c) Personal privacy. We are careful not to disclose information that could reasonably be expected to constitute an unwarranted invasion of personal privacy. When a name surfaces in an investigation, that person is likely to be vulnerable to innuendo, rumor, harassment, and retaliation.


(d) Confidential sources and information. We may withhold records whose release could reasonably be expected to disclose the identity of a confidential source of information. A confidential source may be an individual; a State, local, or foreign government agency; or any private organization. The exemption applies whether the source provides information under an express promise of confidentiality or under circumstances from which such an assurance could be reasonably inferred. Also, where the record, or information in it, has been compiled by a law enforcement authority conducting a criminal investigation, or by an agency conducting a lawful national security investigation, the exemption also protects all information supplied by a confidential source. Also protected from mandatory disclosure is any information which, if disclosed, could reasonably be expected to jeopardize the system of confidentiality that assures a flow of information from sources to investigatory agencies.


(e) Techniques and procedures. We may withhold records reflecting special techniques or procedures of investigation or prosecution, not otherwise generally known to the public. In some cases, it is not possible to describe even in general terms those techniques without disclosing the very material to be withheld. We may also withhold records whose release would disclose guidelines for law enforcement investigations or prosecutions if this disclosure could reasonably be expected to create a risk that someone could circumvent requirements of law or of regulation.


(f) Life and physical safety. We may withhold records whose disclosure could reasonably be expected to endanger the life or physical safety of any individual. This protection extends to threats and harassment as well as to physical violence.


[62 FR 4154, Jan. 29, 1997. Redesignated at 63 FR 35132, June 29, 1998]


§ 402.110 Exemptions eight and nine for withholding records: Records on financial institutions; records on wells.

Exemption eight permits us to withhold records about regulation or supervision of financial institutions. Exemption nine permits the withholding of geological and geophysical information and data, including maps, concerning wells.


§ 402.125 Who may release a record.

Except as otherwise provided by regulation, only the Deputy Executive Director for the Office of Public Disclosure, Office of the General Counsel, SSA, or her or his designee may determine whether to release any record in SSA’s control and possession. This official is SSA’s Freedom of Information Officer. Sections 402.40, 402.55, and 402.60 list some of the materials which we have determined may be released.


[62 FR 4154, Jan. 29, 1997, as amended at 68 FR 60295, Oct. 22, 2003]


§ 402.130 How to request a record.

You may request a record in person or by mail or by electronic telecommunications. To the extent practicable, and in the future, we will attempt to provide access for requests by telephone, fax, Internet, and e-mail. Any request should reasonably describe the record you want. If you have detailed information which would assist us in identifying that record, please submit it with your request. We may charge fees for some requests (§§ 402.145-402.175 explain our fees). You should identify the request as a Freedom of Information Act request and mark the outside of any envelope used to submit your request as a “Freedom of Information Request.” The staff at any Social Security office can help you prepare this request.


[63 FR 35132, June 29, 1998]


§ 402.135 Where to send a request.

You may send your request for a record to: The Deputy Executive Director for the Office of Public Disclosure, Office of the General Counsel, Social Security Administration, 6401 Security Boulevard, Baltimore, Maryland 21235.


[62 FR 4154, Jan. 29, 1997, as amended at 68 FR 60295, Oct. 22, 2003]


§ 402.140 How a request for a record is processed.

(a) In general, we will make a determination as to whether a requested record will be provided within 20 days (excepting Saturdays, Sundays, and legal public holidays) after receipt of a request by the appropriate official (see § 402.135). This 20-day period may be extended in unusual circumstances by written notice to you, explaining why we need additional time, and the extension may be for up to 10 additional working days when one or more of the following situations exist:


(1) The office processing the request needs to locate and then obtain the record from another facility;


(2) We need to locate, obtain, and appropriately examine a large number of records which are requested in a single request; or


(3) The office processing the request needs to consult with another agency which has a substantial interest in the subject matter of the request. This consultation shall be conducted with all practicable speed.


(b) If we cannot process your request within 10 additional days, we will notify you and provide you an opportunity to limit the scope of the request so that it may be processed within the additional 10 days, or we will provide you with an opportunity to arrange with us an alternative time frame for processing the request, or for processing a modified request.


(c) Multi-tracking procedures. We will establish four tracks for handling requests and the track to which a request is assigned will depend on the nature of the request and the estimated processing time:


(1) Track 1 – Requests that can be answered with readily available records or information. These are the fastest to process.


(2) Track 2 – Requests where we need records or information from other offices throughout the Agency but we do not expect that the decision on disclosure will be as time consuming as for requests in Track 3.


(3) Track 3 – Requests which require a decision or input from another office or agency and a considerable amount of time will be needed for that, or the request is complicated or involves a large number of records. Usually, these cases will take the longest to process.


(4) Track 4 – Requests that will be expedited.


(d) We will provide for expedited access for requesters who show a “compelling need” for a speedy response. The EFOIA describes compelling need as when the failure to obtain the records on an expedited basis could reasonably be expected to pose “an imminent threat to the life or physical safety of an individual,” or when the request is from a person primarily engaged in disseminating information (such as a member of the news media), and there is an “urgency to inform the public concerning actual or alleged Federal Government activity.” We also will expedite processing of a request if the requester explains in detail to our satisfaction that a prompt response is needed because the requester may be denied a legal right, benefit, or remedy without the requested information, and that it cannot be obtained elsewhere in a reasonable amount of time. We will respond within 10 days to a request for expedited processing and, if we decide to grant expedited processing, we will then notify you of our decision whether or not to disclose the records requested as soon as practicable.


[63 FR 35133, June 29, 1998]


§ 402.145 Responding to your request.

(a) Retrieving records. We are required to furnish copies of records only when they are in our possession or we can retrieve them from storage. We will make reasonable efforts to search for records manually or by automated means, including any information stored in an electronic form or format, except when such efforts would significantly interfere with the operation of our automated information system. If we have stored the records you want in the National Archives or another storage center, we will retrieve and review them for possible disclosure. However, the Federal Government destroys many old records, so sometimes it is impossible to fill requests. Various laws, regulations, and manuals give the time periods for keeping records before they may be destroyed. For example, there is information about retention of records in the Records Disposal Act of 1944, 44 U.S.C. 3301 through 3314; the Federal Property Management Regulations, 41 CFR 101-11.4; and the General Records Schedules of the National Archives and Records Administration.


(b) Furnishing records. We will furnish copies only of records that we have or can retrieve. We are not required to create new records or to perform research for you. We may decide to conserve Government resources and at the same time supply the records you need by consolidating information from various records rather than copying them all. For instance, we could extract sections from various similar records instead of providing repetitious information. We generally will furnish only one copy of a record. We will make reasonable efforts to provide the records in the form or format you request if the record is readily reproducible in that form or format.


(c) Deletions. When we publish or otherwise make available any record, we may delete information that is exempt from disclosure. For example, in an opinion or order, statement of policy, or other record which relates to a private party or parties, the name or names and other identifying details may be deleted. When technically feasible, we will indicate the extent of deletions on the portion of the record that is released or published at the place of the deletion unless including that indication would harm an interest protected by an exemption. If we deny a request, in whole or in part, we will make a reasonable effort to estimate the volume of any requested matter that is not disclosed, unless such an estimate would harm an interest protected by an exemption.


(d) Creation of records. We are not required to create new records merely to satisfy a request. However, we will search manually or by automated means to locate information that is responsive to the request. If extensive computer programming is needed to respond to a request, we may decline to commit such resources, or if we agree to do so, we may charge you for the reasonable cost of doing so. We do not mean that we will never help you get information that does not already exist in our records. However, diverting staff and equipment from our other responsibilities may not always be possible.


[63 FR 35133, June 29, 1998]


§ 402.150 Release of records.

(a) Records previously released. If we have released a record, or a part of a record, to others in the past, we will ordinarily release it to you also. However, we will not release it to you if a statute forbids this disclosure, and we will not necessarily release it to you if an exemption applies in your situation and it did not apply, or applied differently, in the previous situation(s) or if the previous release was unauthorized. See § 402.45(d) regarding records in electronic reading rooms.


(b) Poor copy. If we cannot make a legible copy of a record to be released, we do not attempt to reconstruct it. Instead, we furnish the best copy possible and note its poor quality in our reply.


[62 FR 4154, Jan. 29, 1997, as amended at 63 FR 35133, June 29, 1998]


§ 402.155 Fees to be charged – categories of requests.

Paragraphs (a) through (c) of this section state, for each category of request, the type of fees that we will generally charge. However, for each of these categories, the fees may be limited, waived, or reduced for the reasons given below or for other reasons.


(a) Commercial use request. If your request is for a commercial use, we will charge you the costs of search, review, and duplication.


(b) Educational and scientific institutions and news media. If you are an educational institution or a non-commercial scientific institution, operated primarily for scholarly or scientific research, or a representative of the news media, and your request is not for a commercial use, we will charge you only for the duplication of documents. Also, we will not charge you the copying costs for the first 100 pages of duplication.


(c) Other requesters. If your request is not the kind described by paragraph (a) or (b) of this section, then we will charge you only for the search and the duplication. Also, we will not charge you for the first two hours of search time or for the copying costs of the first 100 pages of duplication.


§ 402.160 Fees to be charged – general provisions.

(a) We may charge search fees even if the records we find are exempt from disclosure, or even if we do not find any records at all.


(b) If we are not charging you for the first two hours of search time, under paragraph (c) of § 402.155, and those two hours are spent on a computer search, then the two free hours are the first two hours of the time needed to access the information in the computer.


(c) If we are not charging you for the first 100 pages of duplication, under paragraph (b) or (c) of § 402.155, then those 100 pages are the first 100 pages of photocopies of standard size pages, or the first 100 pages of computer printout.


(d) We will charge interest on unpaid bills beginning on the 31st day following the day the bill was sent.


[62 FR 4154, Jan. 29, 1997, as amended at 63 FR 35134, June 29, 1998]


§ 402.165 Fee schedule.

The following is our fee schedule for providing records and related services under the FOIA:


(a) Manual searching for or reviewing of records. When the search or review is performed by employees at grade GS-1 through GS-8, we will charge an hourly rate based on the salary of a GS-5, step 7, employee; when done by a GS-9 through GS-14, an hourly rate based on the salary of a GS-12, step 4, employee; and when done by a GS-15 or above, an hourly rate based on the salary of a GS-15, step 7, employee. In each case, we will compute the hourly rate by taking the current hourly rate for the specified grade and step, adding 16% of that rate to cover benefits, and rounding to the nearest whole dollar. As of January 5, 1997, these rates were $14, $28, and $50 respectively. These rates are adjusted as Federal salaries change. When a search involves employees at more than one of these levels, we will charge the rate appropriate for each.


(b) Computer searching and printing. We will charge the actual cost of operating the computer plus charges for the time spent by the operator, at the rates given in paragraph (a) of this section.


(c) Photocopying standard size pages. We will charge $0.10 per page. The Freedom of Information (FOI) Officer may charge lower fees for particular documents where –


(1) The document has already been printed in large numbers;


(2) The program office determines that using existing stock to answer this request, and any other anticipated FOI requests, will not interfere with program requirements; and


(3) The FOI Officer determines that the lower fee is adequate to recover the prorated share of the original printing costs.


(d) Photocopying odd-size documents. For photocopying documents such as punchcards or blueprints, or reproducing other records such as tapes, we will charge the actual costs of operating the machine, plus the actual cost of the materials used, plus charges for the time spent by the operator, at the rates given in paragraph (a) of this section.


(e) Certifying that records are true copies. This service is not required by the FOIA. If we agree to provide it, we will charge $10 per certification.


(f) Sending records by express mail, certified mail, or other special methods. This service is not required by the FOIA. If we agree to provide it, we will charge our actual costs.


(g) Other special services. For performing any other special service that you request and we agree to, we will charge the actual costs of operating any machinery, plus actual cost of any materials used, plus charges for the time of our employees, at the rates given in paragraph (a) of this section.


(h) Billing exceeds cost of service. Generally we will not charge you a fee when the cost of the service is less than the cost of sending you a bill. However, where an individual, organization, or governmental unit makes multiple separate requests, we will total the costs incurred and periodically bill the requester for the services rendered.


(i) Fee for copies of printed materials. When extra copies of printed material are available, the charge is generally 1 cent per page. If the material may be purchased from the Superintendent of Documents, the charge is that set by the Superintendent. The Superintendent’s address is in § 402.40.


(j) When not applicable. This fee schedule does not apply to requests for records of Social Security number holders, wage earners, employers, and claimants when the requests are governed by section 1106 of the Social Security Act and by §§ Sections 402.170 and 402.175.


§ 402.170 Fees for providing records and related services for program purposes pursuant to section 1106 of the Social Security Act.

(a) Program purposes described. (1) We consider a request to be program related if the information must be disclosed under the Social Security Act. For example, section 205(c)(2)(A) of the Act (42 U.S.C. 405(c)(2)(A)) requires that we provide certain information upon request to a worker, her or his legal representative, her or his survivor, or the legal representative of the worker’s estate. That information is the amounts of the worker’s wages and self-employment income and the periods during which they were paid or derived, as shown by our records.


(2) We also consider a request to be program related if the requester indicates the needed information will be used for a purpose which is directly related to the administration of a program under the Social Security Act.


(i) The major criteria we consider in deciding whether a proposed use is so related are:


(A) Is the information needed to pursue some benefit under the Act?


(B) Is the information needed solely to verify the accuracy of information obtained in connection with a program administered under the Act?


(C) Is the information needed in connection with an activity which has been authorized under the Act?


(D) Is the information needed by an employer to carry out her or his taxpaying responsibilities under the Federal Insurance Contributions Act or section 218 of the Act?


(ii) We will consider on a case by case basis those requests which do not meet these criteria but are claimed to be program related.


(b) When we charge. If we determine the request for information is program related, we may or may not charge for the information. For example, as stated in paragraph (a) of this section, we generally will not charge you for information needed to assure the accuracy of our records on which your present or future Social Security benefits depend. In addition, we generally will not charge for furnishing information under section 205(c)(2)(A) of the Act. However, if we do charge for a program related request (for example, if more detailed information or special services are requested) we will use the fee schedule in § 402.165 if information is being disclosed under the FOIA and the fee schedule in 20 CFR 401.95 if access to the information is being granted under the Privacy Act. (Exception: If the request is for purposes of administering employee benefits covered by the Employee Retirement Income Security Act of 1974 (ERISA), even if the request is covered by section 205(c)(2)(A) of the Act, we will charge under § 402.175.)


§ 402.175 Fees for providing information and related services for non-program purposes.

(a) General. Section 1106(c) of the Social Security Act permits the Commissioner to require requesters of information to pay the full cost of supplying the information where the information is requested to comply with the ERISA, or “* * * for any other purpose not directly related to the administration of the program or programs under * * *” the Social Security Act. This may be done notwithstanding the fee provisions of the FOIA and the Privacy Act or any other provision of law. As used in this section –


(1) Full cost includes the direct and indirect costs to SSA (including costs of duplication) of providing information and related services under section 1106(c) of the Act; and


(2) Full cost of an employee’s time includes fringe benefits and overhead costs such as rent and utilities.


(b) Non-program related requests. We consider a request for information which does not meet or equal any of the criteria in § 402.170 to be non-program related. (Whether a request for information about an individual is made by that individual or by someone else is not a factor.) In responding to these requests, or requests for ERISA purposes, we will charge the full cost of our services as described in paragraph (c) of this section.


(c) Fee schedule. Our fee schedule for non-program related requests is:


(1) Manual searching for records. Full cost of the employee’s time.


(2) Photocopying, or reproducing records such as magnetic tapes or punch cards. Full cost of the operator’s time plus the full cost of the machine time and the materials used.


(3) Use of electronic data processing equipment to obtain records. Our full cost for the service, including computer search time, computer runs and printouts, and the time of computer programmers and operators and other employees.


(4) Certification or authentication of records. Full cost of certification or authentication.


(5) Forwarding materials to destination. If you request special arrangements for forwarding the material, we will charge you the full cost of this service (e.g., you request express mail or a commercial delivery service). If no special forwarding arrangements are requested, we will charge you the full cost of the service, including the U.S. Postal Service cost.


(6) Performing other special services. If we agree to provide any special services you request, we will charge you the full cost of the time of the employee who performs the service, plus the full cost of any machine time and materials that the employee uses.


(7) Billing exceeds cost of service. Generally we will not charge you a fee when the cost of the service is less than the cost of sending you a bill. However, where an individual, organization, or governmental unit makes multiple separate requests, we will total the costs incurred and bill the requester for the services rendered.


(d) Fee for copies of printed materials. When extra copies of printed material are available, the charge is generally 1 cent per page. If the material may be purchased from the Superintendent of Documents, the charge is that set by the Superintendent. The Superintendent’s address is in § 402.40.


(e) Charging when requested record not found. We may charge you for search time, even though we fail to find the records. We may also charge you for search time if the records we locate are exempt from disclosure.


§ 402.180 Procedure on assessing and collecting fees for providing records.

(a) We will generally assume that when you send us a request, you agree to pay for the services needed to locate and send that record to you. You may specify in your request a limit on the amount you are willing to spend. If you do that or include with your request a payment that does not cover our fee, we will notify you if it appears that the fee will exceed that amount and ask whether you want us to continue to process your request. Also, before we start work on your request under § 402.140, we will generally notify you of our exact or estimated charge for the information, unless it is clear that you have a reasonable idea of the cost.


(b) If you have failed to pay previous bills in a timely fashion, or if our initial review of your request indicates that we will charge you fees exceeding $250, we will require you to pay your past due fees and/or the estimated fees, or a deposit, before we start searching for the records you want. If so, we will let you know promptly upon receiving your request. In such cases, administrative time limits (i.e., ten working days from receipt of initial requests and 20 working days from receipt of appeals from initial denials, plus permissible extensions of these time limits) will begin only after we come to an agreement with you over payment of fees, or decide that fee waiver or reduction is appropriate.


(c) We will normally require you to pay all fees before we furnish the records to you. We may, at our discretion, send you a bill along with or following the furnishing of the records. For example, we may do this if you have a history of prompt payment. We may also, at our discretion, aggregate the charges for certain time periods in order to avoid sending numerous small bills to frequent requesters, or to businesses or agents representing requesters. For example, we might send a bill to such a requester once a month. Fees should be paid in accordance with the instructions furnished by the person who responds to your requests.


(d) Payment of fees will be made by check or money order payable to “Social Security Administration”.


[62 FR 4154, Jan. 29, 1997, as amended at 68 FR 60295, Oct. 22, 2003]


§ 402.185 Waiver or reduction of fees in the public interest.

(a) Standard. We will waive or reduce the fees we would otherwise charge if disclosure of the information meets both tests which are explained in paragraphs (b) and (c) of this section:


(1) It is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government; and


(2) It is not primarily in the commercial interest of the requester.


(b) Public interest. The disclosure passes the first test only if it furthers the specific public interest of being likely to contribute significantly to public understanding of government operations or activities, regardless of any other public interest it may further. In analyzing this question, we will consider the following factors:


(1) How, if at all, do the records to be disclosed pertain to the operations or activities of the Federal Government?


(2) Would disclosure of the records reveal any meaningful information about government operations or activities? Can one learn from these records anything about such operations that is not already public knowledge?


(3) Will the disclosure advance the understanding of the general public as distinguished from a narrow segment of interested persons? Under this factor we may consider whether the requester is in a position to contribute to public understanding. For example, we may consider whether the requester has such knowledge or expertise as may be necessary to understand the information, and whether the requester’s intended use of the information would be likely to disseminate the information among the public. An unsupported claim to be doing research for a book or article does not demonstrate that likelihood, while such a claim by a representative of the news media is better evidence.


(4) Will the contribution to public understanding be a significant one? Will the public’s understanding of the government’s operations be substantially greater as a result of the disclosure?


(c) Not primarily in the requester’s commercial interest. If the disclosure passes the test of furthering the specific public interest described in paragraph (b) of this section, we will determine whether it also furthers the requester’s commercial interest and, if so, whether this effect outweighs the advancement of that public interest. In applying this second test, we will consider the following factors:


(1) Would the disclosure further a commercial interest of the requester, or of someone on whose behalf the requester is acting? “Commercial interests” include interests relating to business, trade, and profit. Not only profit-making corporations have commercial interests – so do nonprofit corporations, individuals, unions, and other associations. The interest of a representative of the news media in using the information for news dissemination purposes will not be considered a commercial interest.


(2) If disclosure would further a commercial interest of the requester, would that effect outweigh the advancement of the public interest defined in paragraph (b) of this section? Which effect is primary?


(d) Deciding between waiver and reduction. If the disclosure passes both tests, we will normally waive fees. However, in some cases we may decide only to reduce the fees. For example, we may do this when disclosure of some but not all of the requested records passes the tests.


(e) Procedure for requesting a waiver or reduction. You must make your request for a waiver or reduction at the same time you make your request for records. You should explain why you believe a waiver or reduction is proper under the analysis in paragraphs (a) through (d) of this section. Only FOI Officers may make the decision whether to waive, or reduce, the fees. If we do not completely grant your request for a waiver or reduction, the denial letter will designate a review official. You may appeal the denial to that official. In your appeal letter, you should discuss whatever reasons are given in our denial letter. The process prescribed in § 402.190 of this part will also apply to these appeals.


§ 402.190 Officials who may deny a request for records under FOIA.

Only the Deputy Executive Director for the Office of Public Disclosure, Office of the General Counsel, SSA, or her or his designee is authorized to deny a written request to obtain, inspect, or copy any social security record.


[62 FR 4154, Jan. 29, 1997, as amended at 68 FR 60295, Oct. 22, 2003]


§ 402.195 How a request is denied.

(a) Oral requests. If we cannot comply with your oral request because the Deputy Executive Director for the Office of Public Disclosure, Office of the General Counsel (or designee) has not previously made a determination to release the record you want, we will tell you that fact. If you still wish to pursue your request, you must put your request in writing.


(b) Written requests. If you make a written request and the information or record you requested will not be released, we will send you an official denial in writing. We will explain why the request was denied (for example, the reasons why the requested document is subject to one or more clearly described exemptions), will include the name and title or position of the person who made the decision, and what your appeal rights are.


(c) Unproductive searches. We make a diligent search for records to satisfy your request. Nevertheless, we may not be able always to find the records you want using the information you provided, or they may not exist. If we advise you that we have been unable to find the records despite a diligent search, this does not constitute a denial of your request.


[62 FR 4154, Jan. 29, 1997, as amended at 68 FR 60295, Oct. 22, 2003]


§ 402.200 How to appeal a decision denying all or part of a request.

(a) How to appeal. If all or part of your written request was denied, you may request that the Commissioner of Social Security, 6401 Security Boulevard, Baltimore, MD 21235 review that determination. Your request for review:


(1) Must be in writing;


(2) Must be mailed within 30 days after you received notification that all or part of your request was denied or, if later, 30 days after you received materials in partial compliance with your request; and


(3) May include additional information or evidence to support your request.


(b) How the review is made. After reviewing the prior decision and after considering anything else you have submitted, the Commissioner or his or her designee will affirm or revise all or part of the prior decision. The Commissioner (or a designee) will affirm a denial only after consulting with the appropriate SSA official(s), including legal counsel. The decision must be made within 20 working days after your appeal is received. The Commissioner or a designee may extend this time limit up to 10 additional working days if one of the situations in § 402.140(a) exists, provided that, if a prior extension was used to process this request, the sum of the extensions may not exceed 10 working days. You will be notified in writing of any extension, the reason for the extension, and the date by which your appeal will be decided.


(c) How you are notified of the Commissioner’s decision. The Commissioner or a designee will send you a written notice of the decision explaining the basis of the decision (for example, the reasons why an exemption applies) which will include the name and title or position of the person who made the decision. The notice will tell you that if any part of your request remains unsatisfied, you have the right to seek court review.


§ 402.205 U.S. District Court action.

If the Commissioner or a designee, upon review, affirms the denial of your request for records, in whole or in part, you may ask a U.S. District Court to review that denial. See 5 U.S.C. 552(a)(4)(B). If we fail to act on your request for a record or for review of a denial of such a request within the time limits in § 402.140(a) or in § 402.190(b), you may ask a U.S. District Court to treat this as if the Commissioner had denied your request.


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


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


Source:66 FR 2809, Jan. 12, 2001, unless otherwise noted.

§ 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.


(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 or your 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 do you 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: Social Security Administration, Office of the General Counsel, Office of General Law, 6401 Security Boulevard, Room 617 Altmeyer Building, Baltimore, Maryland, 21235-6401, Attn: Touhy Officer. (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.


[66 FR 2809, Jan. 12, 2001; 66 FR 14316, Mar. 12, 2001, as amended at 73 FR 26002, May 8, 2008; 74 FR 16327, Apr. 10, 2009; 79 FR 7577, Feb. 10, 2014]


§ 403.125 How will we handle requests for records, information, or testimony involving SSA’s Office of the Inspector General?

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 otherwise 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 21235-6401.


§ 403.130 What factors may the Commissioner consider in determining whether SSA will grant your 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, the following:


(a) Risk of law violation or compromise of Government privilege. (1) Would providing the testimony 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)?


(2) Would providing the testimony put confidential, sensitive, or privileged information at risk?


(b) Burden on SSA. (1) Would granting the application unduly expend for private purposes the resources of the United States (including the time of SSA employees needed for official duties)?


(2) Would the testimony be available in a less burdensome form or from another source?


(3) Would the testimony be limited to the purpose of the request?


(4) Did you previously request the same testimony in the same or a related proceeding?


(c) Interests served by allowing testimony. (1) Would providing the testimony serve SSA’s interest?


(2) Would providing the testimony maintain SSA’s policy of impartiality among private litigants?


(3) Is another government agency involved in the proceeding?


(4) Do you need the testimony to prevent fraud or similar misconduct?


(5) Would providing the testimony be necessary to prevent a miscarriage of justice or to preserve the rights of an accused individual to due process in a criminal proceeding?


§ 403.135 What happens to your application for testimony?

(a) If 20 CFR part 401 or 402 does 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 permits 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.


§ 403.145 What will SSA do if you 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 Is there a fee for our services?

(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 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).


PART 404 – FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )

Subpart A – Introduction, General Provisions and Definitions


Authority:Secs. 203, 205(a), 216(j), and 702(a)(5) of the Social Security Act (42 U.S.C. 403, 405(a), 416(j), and 902(a)(5)) and 48 U.S.C. 1801.

§ 404.1 Introduction.

The regulations in this part 404 (Regulations No. 4 of the Social Security Administration) relate to the provisions of title II of the Social Security Act as amended on August 28, 1950, and as further amended thereafter. The regulations in this part are divided into 22 subparts:


(a) Subpart A contains provisions relating to general definitions and use of terms.


(b) Subpart B relates to quarters of coverage and insured status requirements.


(c) Subpart C relates to the computation and recomputation of the primary insurance amount.


(d) Subpart D relates to the requirements for entitlement to monthly benefits and to the lump-sum death payment duration of entitlement and benefit rates.


(e) Subpart E contains provisions relating to the reduction and increase of insurance benefits and to deductions from benefits and lump-sum death payments.


(f) Subpart F relates to overpayments, underpayments, waiver of adjustment or recovery of overpayments and liability of certifying officers.


(g) Subpart G relates to filing of applications and other forms.


(h) Subpart H relates to evidentiary requirements for establishing an initial and continuing right to monthly benefits and for establishing a right to lump-sum death payment. (Evidentiary requirements relating to disability are contained in subpart P.)


(i) Subpart I relates to maintenance and revision of records of wages and self-employment income.


(j) Subpart J relates to initial determinations, the administrative review process, and reopening of determinations and decisions.


(k) Subpart K relates to employment, wages, self-employment and self-employment income.


(l) Subpart L is reserved.


(m) Subpart M relates to coverage of employees of State and local Governments.


(n) Subpart N relates to benefits in cases involving veterans.


(o) Subpart O relates to the interrelationship of the old-age, survivors and disability insurance program with the railroad retirement program.


(p) Subpart P relates to the determination of disability or blindness.


(q) Subpart Q relates to standards, requirements and procedures for States making determinations of disability for the Commissioner. It also sets out the Commissioner’s responsibilities in carrying out the disability determination function.


(r) Subpart R relates to the provisions applicable to attorneys and other individuals who represent applicants in connection with claims for benefits.


(s) Subpart S relates to the payment of benefits to individuals who are entitled to benefits.


(t) Subpart T relates to the negotiation and administration of totalization agreements between the United States and foreign countries.


(u) Subpart U relates to the selection of a representative payee to receive benefits on behalf of a beneficiary and to the duties and responsibilities of a representative payee.


(v) Subpart V relates to payments to State vocational rehabilitative agencies for vocational rehabilitation services.


[26 FR 7054, Aug. 5, 1961; 26 FR 7760, Aug. 19, 1961, as amended at 27 FR 4513, May 11, 1962; 28 FR 14492, Dec. 31, 1963; 51 FR 11718, Apr. 7, 1986; 62 FR 38450, July 18, 1997; 83 FR 62456, Dec. 4, 2018]


§ 404.2 General definitions and use of terms.

(a) Terms relating to the Act and regulations. (1) The Act means the Social Security Act, as amended (42 U.S.C. Chapter 7).


(2) Section means a section of the regulations in part 404 of this chapter unless the context indicates otherwise.


(b) Commissioner; Appeals Council; Administrative Law Judge; Administrative Appeals Judge defined – (1) Commissioner means the Commissioner of Social Security.


(2) Appeals Council means the Appeals Council of the Office of Analytics, Review, and Oversight in the Social Security Administration or such member or members thereof as may be designated by the Chair of the Appeals Council.


(3) Administrative Law Judge means an Administrative Law Judge in the Office of Hearings Operations in the Social Security Administration.


(4) Administrative Appeals Judge means an Administrative Appeals Judge serving as a member of the Appeals Council.


(c) Miscellaneous. (1) Certify, when used in connection with the duty imposed on the Commissioner by section 205(i) of the act, means that action taken by the Administration in the form of a written statement addressed to the Managing Trustee, setting forth the name and address of the person to whom payment of a benefit or lump sum, or any part thereof, is to be made, the amount to be paid, and the time at which payment should be made.


(2) Benefit means an old-age insurance benefit, disability insurance benefit, wife’s insurance benefit, husband’s insurance benefit, child’s insurance benefit, widow’s insurance benefit, widower’s insurance benefit, mother’s insurance benefit, father’s insurance benefit, or parent’s insurance benefit under Title II of the Act. (Lump sums, which are death payments under title II of the Act, are excluded from the term benefit as defined in this part to permit greater clarity in the regulations.)


(3) Lump sum means a lump-sum death payment under title II of the act or any person’s share of such a payment.


(4) Attainment of age. An individual attains a given age on the first moment of the day preceding the anniversary of his birth corresponding to such age.


(5) State, unless otherwise indicated, includes:


(i) The District of Columbia,


(ii) The Virgin Islands,


(iii) The Commonwealth of Puerto Rico effective January 1, 1951,


(iv) Guam and American Samoa, effective September 13, 1960, generally, and for purposes of sections 210(a) and 211 of the Act effective after 1960 with respect to service performed after 1960, and effective for taxable years beginning after 1960 with respect to crediting net earnings from self-employment and self-employment income,


(v) The Territories of Alaska and Hawaii prior to January 3, 1959, and August 21, 1959, respectively, when those territories acquired statehood, and


(vi) The Commonwealth of the Northern Mariana Islands (CNMI) effective January 1, 1987; Social Security coverage for affected temporary employees of the government of the CNMI is also effective on January 1, 1987, under section 210(a)(7)(E) of the Social Security Act. In addition, Social Security coverage for affected non-temporary employees of the government of the CNMI is effective on October 1, 2012, under section 210(a)(7)(C) of the Social Security Act.


(6) United States, when used in a geographical sense, includes, unless otherwise indicated:


(i) The States,


(ii) The Territories of Alaska and Hawaii prior to January 3, 1959, and August 21, 1959, respectively, when they acquired statehood,


(iii) The District of Columbia,


(iv) The Virgin Islands,


(v) The Commonwealth of Puerto Rico effective January 1, 1951, (vi) Guam and American Samoa, effective September 13, 1960, generally, and for purposes of sections 210(a) and 211 of the Act, effective after 1960 with respect to service performed after 1960, and effective for taxable years beginning after 1960 with respect to crediting net earnings from self-employment and self-employment income, and


(vii) The Commonwealth of the Northern Mariana Islands effective January 1, 1987.


(7) Masculine gender includes the feminine, unless otherwise indicated.


(8) The terms defined in sections 209, 210, and 211 of the act shall have the meanings therein assigned to them.


[26 FR 7055, Aug. 5, 1961; 26 FR 7760, Aug. 19, 1961, as amended at 28 FR 1037, Feb. 2, 1963; 28 FR 14492, Dec. 31, 1963; 29 FR 15509, Nov. 19, 1964; 41 FR 32886, Aug. 6, 1976; 51 FR 11718, Apr. 7, 1986; 61 FR 41330, Aug. 8, 1996; 62 FR 38450, July 18, 1997; 69 FR 51555, Aug. 20, 2004; 79 FR 33684, June 12, 2014; 83 FR 21708, May 10, 2018; 85 FR 73156, Nov. 16, 2020]


§ 404.3 General provisions.

(a) Effect of cross references. The cross references in the regulations in this part 404 to other portions of the regulations, when the word see is used, are made only for convenience and shall be given no legal effect.


(b) Periods of limitation ending on nonwork days. Pursuant to the provisions of section 216(j) of the act, effective September 13, 1960, where any provision of title II, or any provision of another law of the United States (other than the Internal Revenue Code of 1954) relating to or changing the effect of title II, or any regulation of the Commissioner issued under title II, provides for a period within which an act is required to be done which affects eligibility for or the amount of any benefit or payment under this title or is necessary to establish or protect any rights under this title, and such period ends on a Saturday, Sunday or Federal legal holiday or on any other day all or part of which is declared to be a nonwork day for Federal employees by statute or Executive Order, then such act shall be considered as done within such period if it is done on the first day thereafter which is not a Saturday, Sunday, or legal holiday or any other day all or part of which is declared to be a nonwork day for Federal employees either by statute or Executive Order. For purposes of this paragraph, the day on which a period ends shall include the final day of any extended period where such extension is authorized by law or by the Commissioner pursuant to law. Such extension of any period of limitation does not apply to periods during which benefits may be paid for months prior to the month an application for such benefits is filed pursuant to § 404.621, or to periods during which an application for benefits may be accepted as such pursuant to § 404.620.


[26 FR 7055, Aug. 5, 1961, as amended at 29 FR 15509, Nov. 19, 1964; 51 FR 11718, Apr. 7, 1986; 61 FR 41330, Aug. 8, 1996; 62 FR 38450, July 18, 1997]


Subpart B – Insured Status and Quarters of Coverage


Authority:Secs. 205(a), 212, 213, 214, 216, 217, 223, and 702(a)(5) of the Social Security Act (42 U.S.C. 405(a), 412, 413, 414, 416, 417, 423, and 902(a)(5)).


Source:45 FR 25384, Apr. 15, 1980, unless otherwise noted.

General

§ 404.101 Introduction.

(a) Insured status. This subpart explains what we mean when we say that a person has insured status under the social security program. It also describes how a person may become fully insured, currently insured or insured for disability benefits. Your insured status is a basic factor in determining if you are entitled to old-age or disability insurance benefits or to a period of disability. It is also a basic factor in determining if dependents’ or survivors’ insurance benefits or a lump-sum death payment are payable based on your earnings record. If you are neither fully nor currently insured, no benefits are payable based on your earnings. (Subpart D of this part describes these benefits and the kind of insured status required for each.) In §§ 404.110 through 404.120 we tell how we determine if you are fully or currently insured. The rules for determining if you are insured for purposes of establishing a period of disability or becoming entitled to disability insurance benefits are in §§ 404.130 through 404.133. Whether you have the required insured status depends on the number of quarters of coverage (QCs) you have acquired.


(b) QCs. This subpart also sets out our rules on crediting you with QCs. QCs are used in determining insured status. In general, you are credited with QCs based on the wages you are paid and the self-employment income you derive during certain periods. (See subpart K of this part for a definition of wages and self-employment income.) Our rules on how and when you acquire a QC are contained in §§ 404.140 through 404.146.


§ 404.102 Definitions.

For the purpose of this subpart –


Act means the Social Security Act, as amended.


Age means how many years old you are. You reach a particular age on the day before your birthday. For example, if your sixty-second birthday is on July 1, 1979, you became age 62 on June 30, 1979.


Quarter or calendar quarter means a period of three calendar months ending March 31, June 30, September 30, or December 31 of any year.


We, our, or us means the Social Security Administration.


You or your means the worker whose insured status is being considered.


Fully Insured Status

§ 404.110 How we determine fully insured status.

(a) General. We describe how we determine the number of quarters of coverage (QCs) you need to be fully insured in paragraphs (b), (c), and (d) of this section. The table in § 404.115 may be used to determine the number of QCs you need to be fully insured under paragraph (b) of this section. We consider certain World War II veterans to have died fully insured (see § 404.111). We also consider certain employees of private nonprofit organizations to be fully insured if they meet special requirements (see § 404.112).


(b) How many QCs you need to be fully insured. (1) You need at least 6 QCs but not more than 40 QCs to be fully insured. A person who died before 1951 with at least 6 QCs is fully insured.


(2) You are fully insured for old-age insurance benefits if you have one QC (whenever acquired) for each calendar year elapsing after 1950 or, if later, after the year in which you became age 21, and before the year you reach retirement age, that is, before –


(i) The year you become age 62, if you are a woman;


(ii) The year you become age 62, if you are a man who becomes age 62 after 1974;


(iii) The year 1975, if you are a man who became age 62 in 1973 or 1974; or


(iv) The year you became age 65, if you are a man who became age 62 before 1973.


(3) A person who is otherwise eligible for survivor’s benefits and who files an application will be entitled to benefits based on your earnings if you die fully insured. You will be fully insured if you had one QC (whenever acquired) for each calendar year elapsing after 1950 or, if later, after the year you became age 21, and before the earlier of the following years:


(i) The year you die; or


(ii) The year you reach retirement age as shown in paragraph (b)(2) of this section.


(c) How a period of disability affects the number of QCs you need. In determining the number of elapsed years under paragraph (b) of this section, we do not count as an elapsed year any year which is wholly or partly in a period of disability we established for you. For example, if we established a period of disability for you from December 5, 1975 through January 31, 1977, the three years, 1975, 1976 and 1977, would not be counted as elapsed years.


(d) How we credit QCs for fully insured status based on your total wages before 1951 – (1) General. For purposes of paragraph (b) of this section, we may use the following rules in crediting QCs based on your wages before 1951 instead of the rule in § 404.141(b)(1).


(i) We may consider you to have one QC for each $400 of your total wages before 1951, as defined in paragraph (d)(2) of this section, if you have at least 7 elapsed years as determined under paragraph (b)(2) or (b)(3) of this section; and the number of QCs determined under this paragraph plus the number of QCs credited to you for periods after 1950 make you fully insured.


(ii) If you file an application in June 1992 or later and you are not entitled to a benefit under section 227 of the Act in the month the application is made, we may consider you to have at least one QC before 1951 if you have $400 or more total wages before 1951, as defined in paragraph (d)(2) of this section, provided that the number of QCs credited to you under this paragraph plus the number of QCs credited to you for periods after 1950 make you fully insured.


(2) What are total wages before 1951. For purposes of paragraph (d)(1) of this section, your total wages before 1951 include –


(i) Remuneration credited to you before 1951 on the records of the Secretary;


(ii) Wages considered paid to you before 1951 under section 217 of the Act (relating to benefits in case of veterans);


(iii) Compensation under the Railroad Retirement Act of 1937 before 1951 that can be credited to you under title II of the Social Security Act; and


(iv) Wages considered paid to you before 1951 under section 231 of the Act (relating to benefits in case of certain persons interned in the United States during World War II).


(e) When your fully insured status begins. You are fully insured as of the first day of the calendar quarter in which you acquire the last needed QC (see § 404.145).


[45 FR 25384, Apr. 15, 1980, as amended at 50 FR 36573, Sept. 9, 1985; 57 FR 23156, June 2, 1992; 83 FR 21708, May 10, 2018]


§ 404.111 When we consider a person fully insured based on World War II active military or naval service.

We consider that a person, who was not otherwise fully insured, died fully insured if –


(a) The person was in the active military or naval service of the United States during World War II;


(b) The person died within three years after separation from service and before July 27, 1954; and


(c) The conditions in § 404.1350 that permit us to consider the person fully insured are met.


(d) The provisions of this section do not apply to persons filing applications after May 31, 1992, unless a survivor is entitled to benefits under section 202 of the Act based on the primary insurance amount of the fully insured person for the month preceding the month in which the application is made.


[45 FR 25384, Apr. 15, 1980, as amended at 57 FR 23157, June 2, 1992]


§ 404.112 When we consider certain employees of private nonprofit organizations to be fully insured.

If you are age 55 or over on January 1, 1984, and are on that date an employee of an organization described in § 404.1025(a) which does not have in effect a waiver certificate under section 3121(k) of the Code on that date and whose employees are mandatorily covered as a result of section 102 of Pub. L. 98-21, we consider you to be fully insured if you meet the following requirements:


Your age on January 1, 1984 is –
QC’s acquired after Dec. 31, 1983
60 or over6
59 or over but less than age 608
58 or over but less than age 5912
57 or over but less than age 5816
55 or over but less than age 5720

[50 FR 36573, Sept. 9, 1985]


§ 404.115 Table for determining the quarters of coverage you need to be fully insured.

(a) General. You may use the following table to determine the number of quarters of coverage (QCs) you need to be fully insured under § 404.110. Paragraphs (b) and (c) of this section tell you how to use this table.


Worker who reaches retirement age as described in § 404.110(b)(2)
Worker who dies before reaching retirement age as described in § 404.110(b)(2)
Col. I – Date of birth
Col. II
1
Col. III
2 – Year of death
Col. IV
3
Col. V
4 – Age in year of death
Men
Women
Jan. 1, 1893 or earlier66
5 1957
6
6 28
Jan. 2, 1893 to Jan. 1, 1894761958729
Jan. 2, 1894 to Jan. 1, 1895861959830
Jan. 2, 1895 to Jan. 1, 1896961960931
Jan. 2, 1896 to Jan. 1, 189710719611032
Jan. 2, 1897 to Jan. 1, 189811819621133
Jan. 2, 1898 to Jan. 1, 189912919631234
Jan. 2, 1899 to Jan. 1, 1900131019641335
Jan. 2, 1900 to Jan. 1, 1901141119651436
Jan. 2, 1901 to Jan. 1, 1902151219661537
Jan. 2, 1902 to Jan. 1, 1903161319671638
Jan. 2, 1903 to Jan. 1, 1904171419681739
Jan. 2, 1904 to Jan. 1, 1905181519691840
Jan. 2, 1905 to Jan. 1, 1906191619701941
Jan. 2, 1906 to Jan. 1, 1907201719712042
Jan. 2, 1907 to Jan. 1, 1908211819722143
Jan. 2, 1908 to Jan. 1, 1909221919732244
Jan. 2, 1909 to Jan. 1, 1910232019742345
Jan. 2, 1910 to Jan. 1, 1911242119752446
Jan. 2, 1911 to Jan. 1, 1912242219762547
Jan. 2, 1912 to Jan. 1, 1913242319772648
Jan. 2, 1913 to Jan. 1, 1914242419782749
Jan. 2, 1914 to Jan. 1, 1915252519792850
Jan. 2, 1915 to Jan. 1, 1916262619802951
Jan. 2, 1916 to Jan. 1, 1917272719813052
Jan. 2, 1917 to Jan. 1, 1918282819823153
Jan. 2, 1918 to Jan. 1, 1919292919833254
Jan. 2, 1919 to Jan. 1, 1920303019843355
Jan. 2, 1920 to Jan. 1, 1921313119853456
Jan. 2, 1921 to Jan. 1, 1922323219863557
Jan. 2, 1922 to Jan. 1, 1923333319873658
Jan. 2, 1923 to Jan. 1, 1924343419883759
Jan. 2, 1924 to Jan. 1, 1925353519893860
Jan. 2, 1925 to Jan. 1, 1926363619903961
Jan. 2, 1926 to Jan. 1, 19273737
7 1991
4062
Jan. 2, 1927 to Jan. 1, 19283838
Jan. 2, 1928 to Jan. 1, 19293939
Jan. 2, 1929 or later40


1 Number of QCs required for fully insured status; living worker or worker who dies after reaching retirement age.


2 Worker born before Jan. 2, 1930 who dies before reaching retirement age.


3 Number of QCs required for fully insured status.


4 Worker born Jan. 2, 1930 or later, who dies before reaching retirement age.


5 Or earlier.


6 Or younger.


7 Or later.


(b) Number of QCs you need. The QCs you need for fully insured status are in column II opposite your date of birth in column I. If a worker dies before reaching retirement age as described in § 404.110(b)(2), the QCs needed for fully insured status are shown in column IV opposite –


(1) The year of death in column III, if the worker was born before January 2, 1930; or


(2) The age in the year of death in column V, if the worker was born after January 1, 1930.


(c) How a period of disability affects the number of QCs you need. If you had a period of disability established for you, it affects the number of QCs you need to be fully insured (see § 404.110(c)). For each year which is wholly or partly in a period of disability, subtract one QC from the number of QCs shown in the appropriate line and column of the table as explained in paragraph (b) of this section.


Currently Insured Status

§ 404.120 How we determine currently insured status.

(a) What the period is for determining currently insured status. You are currently insured if you have at least 6 quarters of coverage (QCs) during the 13-quarter period ending with the quarter in which you –


(1) Die;


(2) Most recently became entitled to disability insurance benefits; or


(3) Became entitled to old-age insurance benefits.


(b) What quarters are not counted as part of the 13-quarter period. We do not count as part of the 13-quarter period any quarter all or part of which is included in a period of disability established for you, except that the first and last quarters of the period of disability may be counted if they are QCs (see § 404.146(d)).


Disability Insured Status

§ 404.130 How we determine disability insured status.

(a) General. We have four different rules for determining if you are insured for purposes of establishing a period of disability or becoming entitled to disability insurance benefits. To have disability insured status, you must meet one of these rules and you must be fully insured (see § 404.132 which tells when the period ends for determining the number of quarters of coverage (QCs) you need to be fully insured).


(b) Rule I – You must meet the 20/40 requirement. You are insured in a quarter for purposes of establishing a period of disability or becoming entitled to disability insurance benefits if in that quarter –


(1) You are fully insured; and


(2) You have at least 20 QCs in the 40-quarter period (see paragraph (f) of this section) ending with that quarter.


(c) Rule II – You become disabled before age 31. You are insured in a quarter for purposes of establishing a period of disability or becoming entitled to disability insurance benefits if in that quarter –


(1) You have not become (or would not become) age 31;


(2) You are fully insured; and


(3) You have QCs in at least one-half of the quarters during the period ending with that quarter and beginning with the quarter after the quarter you became age 21; however –


(i) If the number of quarters during this period is an odd number, we reduce the number by one; and


(ii) If the period has less than 12 quarters, you must have at least 6 QCs in the 12-quarter period ending with that quarter.


(d) Rule III – You had a period of disability before age 31. You are insured in a quarter for purposes of establishing a period of disability or becoming entitled to disability insurance benefits if in that quarter –


(1) You are disabled again at age 31 or later after having had a prior period of disability established which began before age 31 and for which you were only insured under paragraph (c) of this section; and


(2) You are fully insured and have QCs in at least one-half the calendar quarters in the period beginning with the quarter after the quarter you became age 21 and through the quarter in which the later period of disability begins, up to a maximum of 20 QCs out of 40 calendar quarters; however –


(i) If the number of quarters during this period is an odd number, we reduce the number by one;


(ii) If the period has less than 12 quarters, you must have at least 6 QCs in the 12-quarter period ending with that quarter; and


(iii) No monthly benefits may be paid or increased under Rule III before May 1983.


(e) Rule IV – You are statutorily blind. You are insured in a quarter for purposes of establishing a period of disability or becoming entitled to disability insurance benefits if in that quarter –


(1) You are disabled by blindness as defined in § 404.1581; and


(2) You are fully insured.


(f) How we determine the 40-quarter or other period. In determining the 40-quarter period or other period in paragraph (b), (c), or (d) of this section, we do not count any quarter all or part of which is in a prior period of disability established for you, unless the quarter is the first or last quarter of this period and the quarter is a QC. However, we will count all the quarters in the prior period of disability established for you if by doing so you would be entitled to benefits or the amount of the benefit would be larger.


[49 FR 28547, July 13, 1984, as amended at 55 FR 7313, Mar. 1, 1990]


§ 404.131 When you must have disability insured status.

(a) For a period of disability. To establish a period of disability, you must have disability insured status in the quarter in which you become disabled or in a later quarter in which you are disabled.


(b) For disability insurance benefits. (1) To become entitled to disability insurance benefits, you must have disability insured status in the first full month that you are disabled as described in § 404.1501(a), or if later –


(i) The 17th month (if you have to serve a waiting period described in § 404.315(d)) before the month in which you file an application for disability insurance benefits; or


(ii) The 12th month (if you do not have to serve a waiting period) before the month in which you file an application for disability insurance benefits.


(2) If you do not have disability insured status in a month specified in paragraph (b)(1) of this section, you will be insured for disability insurance benefits beginning with the first month after that month in which you do meet the insured status requirement and you also meet all other requirements for disability insurance benefits described in § 404.315.


§ 404.132 How we determine fully insured status for a period of disability or disability insurance benefits.

In determining if you are fully insured for purposes of paragraph (b), (c), (d), or (e) of § 404.130 on disability insured status, we use the fully insured status requirements in § 404.110, but apply the following rules in determining when the period of elapsed years ends:


(a) If you are a woman, or a man born after January 1, 1913, the period of elapsed years in § 404.110(b) used in determining the number of quarters of coverage (QCs) you need to be fully insured ends as of the earlier of –


(1) The year you become age 62; or


(2) The year in which –


(i) Your period of disability begins;


(ii) Your waiting period begins (see § 404.315(d)); or


(iii) You become entitled to disability insurance benefits (if you do not have to serve a waiting period).


(b) If you are a man born before January 2, 1913, the period of elapsed years in § 404.110(b) used in determining the number of QCs you need to be fully insured ends as of the earlier of –


(1) The year 1975; or


(2) The year specified in paragraph (a)(2) of this section.


[45 FR 25384, Apr. 15, 1980, as amended at 49 FR 28547, July 13, 1984]


§ 404.133 When we give you quarters of coverage based on military service to establish a period of disability.

For purposes of establishing a period of disability only, we give you quarters of coverage (QCs) for your military service before 1957 (see subpart N of this part). We do this even though we may not use that military service for other purposes of title II of the Act because a periodic benefit is payable from another Federal agency based in whole or in part on the same period of military service.


Quarters of Coverage

§ 404.140 What is a quarter of coverage.

(a) General. A quarter of coverage (QC) is the basic unit of social security coverage used in determining a worker’s insured status. We credit you with QCs based on your earnings covered under social security.


(b) How we credit QCs based on earnings before 1978 (General). Before 1978, wages were generally reported on a quarterly basis and self-employment income was reported on an annual basis. For the most part, we credit QCs for calendar years before 1978 based on your quarterly earnings. For these years, as explained in § 404.141, we generally credit you with a QC for each calendar quarter in which you were paid at least $50 in wages or were credited with at least $100 of self-employment income. Section 404.142 tells how self-employment income derived in a taxable year beginning before 1978 is credited to specific calendar quarters for purposes of § 404.141.


(c) How we credit QCs based on earnings after 1977 (General). After 1977, both wages and self-employment income are generally reported on an annual basis. For calendar years after 1977, as explained in § 404.143, we generally credit you with a QC for each part of your total covered earnings in a calendar year that equals the amount required for a QC in that year. Section 404.143 also tells how the amount required for a QC will be increased in the future as average wages increase. Section 404.144 tells how self-employment income derived in a taxable year beginning after 1977 is credited to specific calendar years for purposes of § 404.143.


(d) When a QC is acquired and when a calendar quarter is not a QC (general). Section 404.145 tells when a QC is acquired and § 404.146 tells when a calendar quarter cannot be a QC. These rules apply when we credit QCs under § 404.141 or § 404.143.


§ 404.141 How we credit quarters of coverage for calendar years before 1978.

(a) General. The rules in this section tell how we credit calendar quarters as quarters of coverage (QCs) for calendar years before 1978. We credit you with a QC for a calendar quarter based on the amount of wages you were paid and self-employment income you derived during certain periods. The rules in paragraphs (b), (c), and (d) of this section are subject to the limitations in § 404.146, which tells when a calendar quarter cannot be a QC.


(b) How we credit QCs based on wages paid in, or self-employment income credited to, a calendar quarter. We credit you with a QC for a calendar quarter in which –


(1) You were paid wages of $50 or more (see paragraph (c) of this section for an exception relating to wages paid for agricultural labor); or


(2) You were credited (under § 404.142) with self-employment income of $100 or more.


(c) How we credit QCs based on wages paid for agricultural labor in a calendar year after 1954. (1) We credit QCs based on wages for agricultural labor depending on the amount of wages paid during a calendar year for that work. If you were paid wages for agricultural labor in a calendar year after 1954 and before 1978, we credit you with QCs for calendar quarters in that year which are not otherwise QCs according to the following table.


If the wages paid to you in a calendar year for agricultural labor were
We credit you with
And assign:
1
$400 or more4 QCsAll.
At least $300 but less than $4003 QCsLast 3.
At least $200 but less than $3002 QCsLast 2.
At least $100 but less than $2001 QCLast.
Less than $100No QCs


1 One QC to each of the following calendar quarters in that year.


(2) When we assign QCs to calendar quarters in a year as shown in the table in paragraph (c)(1) of this section, you might not meet (or might not meet as early in the year as otherwise possible) the requirements to be fully or currently insured, to be entitled to a computation or recomputation of your primary insurance amount, or to establish a period of disability. If this happens, we assign the QCs to different quarters in that year than those shown in the table if this assignment permits you to meet these requirements (or meet them earlier in the year). We can only reassign QCs for purposes of meeting these requirements.


(d) How we credit QCs based on wages paid or self-employment income derived in a year. (1) If you were paid wages in a calendar year after 1950 and before 1978 at least equal to the annual wage limitation in effect for that year as described in §§ 404.1047 and 404.1096, we credit you with a QC for each quarter in that calendar year. If you were paid at least $3,000 wages in a calendar year before 1951, we credit you with a QC for each quarter in that calendar year.


(2) If you derived self-employment income (or derived self-employment income and also were paid wages) during a taxable year beginning after 1950 and before 1978 at least equal to the self-employment income and wage limitation in effect for that year as described in § 404.1068(b), we credit you with a QC for each calendar quarter wholly or partly in that taxable year.


[45 FR 25384, Apr. 15, 1980; 45 FR 41931, June 23, 1980, as amended at 70 FR 14977, Mar. 24, 2005]


§ 404.142 How we credit self-employment income to calendar quarters for taxable years beginning before 1978.

In crediting quarters of coverage under § 404.141(b)(2), we credit any self-employment income you derived during a taxable year that began before 1978 to calendar quarters as follows:


(a) If your taxable year was a calendar year, we credit your self-employment income equally to each quarter of that calendar year.


(b) If your taxable year was not a calendar year (that is, it began on a date other than January 1, or was less than a calendar year), we credit your self-employment income equally –


(1) To the calendar quarter in which your taxable year ended; and


(2) To each of the next three or fewer preceding quarters that were wholly or partly in your taxable year.


§ 404.143 How we credit quarters of coverage for calendar years after 1977.

(a) Crediting quarters of coverage (QCs). For calendar years after 1977, we credit you with a QC for each part of the total wages paid and self-employment income credited (under § 404.144) to you in a calendar year that equals the amount required for a QC in that year. For example, if the total of your wages and self-employment income for a calendar year is more than twice, but less than 3 times, the amount required for a QC in that year, we credit you with only 2 QCs for the year. The rules for crediting QCs in this section are subject to the limitations in § 404.146, which tells when a calendar quarter cannot be a QC. In addition, we cannot credit you with more than four QCs for any calendar year. The amount of wages and self-employment income that you must have for each QC is –


(1) $250 for calendar year 1978; and


(2) For each calendar year after 1978, an amount determined by the Commissioner for that year (on the basis of a formula in section 213(d)(2) of the Act which reflects national increases in average wages). The amount determined by the Commissioner is published in the Federal Register on or before November 1 of the preceding year and included in the appendix to this subpart.


(b) Assigning QCs. We assign a QC credited under paragraph (a) of this section to a specific calendar quarter in the calendar year only if the assignment is necessary to –


(1) Give you fully or currently insured status;


(2) Entitle you to a computation or recomputation of your primary insurance amount; or


(3) Permit you to establish a period of disability.


[45 FR 25834, Apr. 15, 1980, as amended at 62 FR 38450, July 18, 1997]


§ 404.144 How we credit self-employment income to calendar years for taxable years beginning after 1977.

In crediting quarters of coverage under § 404.143(a), we credit self-employment income you derived during a taxable year that begins after 1977 to calendar years as follows:


(a) If your taxable year is a calendar year or begins and ends within the same calendar year, we credit your self-employment income to that calendar year.


(b) If your taxable year begins in one calendar year and ends in the following calendar year, we allocate proportionately your self-employment income to the two calendar years on the basis of the number of months in each calendar year which are included completely within your taxable year. We consider the calendar month in which your taxable year ends as included completely within your taxable year.



Example:For the taxable year beginning May 15, 1978, and ending May 14, 1979, your self-employment income is $1200. We credit
7/12 ($700) of your self-employment income to calendar year 1978 and
5/12 ($500) of your self-employment income to calendar year 1979.

§ 404.145 When you acquire a quarter of coverage.

If we credit you with a quarter of coverage (QC) for a calendar quarter under paragraph (b), (c), or (d) of § 404.141 for calendar years before 1978 or assign it to a specific calendar quarter under paragraph (b) of § 404.143 for calendar years after 1977, you acquire the QC as of the first day of the calendar quarter.


§ 404.146 When a calendar quarter cannot be a quarter of coverage.

This section applies when we credit you with quarters of coverage (QCs) under § 404.141 for calendar years before 1978 and under § 404.143 for calendar years after 1977. We cannot credit you with a QC for –


(a) A calendar quarter that has not begun;


(b) A calendar quarter that begins after the quarter of your death;


(c) A calendar quarter that has already been counted as a QC; or


(d) A calendar quarter that is included in a period of disability established for you, unless –


(1) The quarter is the first or the last quarter of this period; or


(2) The period of disability is not taken into consideration (see § 404.320(a)).


Appendix to Subpart B of Part 404 – Quarter of Coverage Amounts for Calendar Years After 1978

This appendix shows the amount determined by the Commissioner that is needed for a quarter of coverage for each year after 1978 as explained in § 404.143. We publish the amount as a Notice in the Federal Register on or before November 1 of the preceding year. The amounts determined by the Commissioner are as follows:


Calendar year
Amount needed
1979$260
1980290
1981310
1982340
1983370
1984390
1985410
1986440
1987460
1988470
1989500
1990520
1991540
1992570

[45 FR 25384, Apr. 15, 1980, as amended at 52 FR 8247, Mar. 17, 1987; 57 FR 44096, Sept. 24, 1992; 62 FR 38450, July 18, 1997]


Subpart C – Computing Primary Insurance Amounts


Authority:Secs. 202(a), 205(a), 215, and 702(a)(5) of the Social Security Act (42 U.S.C. 402(a), 405(a), 415, and 902(a)(5)).


Source:47 FR 30734, July 15, 1982, unless otherwise noted.

General

§ 404.201 What is included in this subpart?

In this subpart we describe how we compute your primary insurance amount (PIA), how and when we will recalculate or recompute your PIA to include credit for additional earnings, and how we automatically adjust your PIA to reflect changes in the cost of living.


(a) What is my primary insurance amount? Your primary insurance amount (PIA) is the basic figure we use to determine the monthly benefit amount payable to you and your family. For example, if you retire in the month you attain full retirement age (as defined in § 404.409) or if you become disabled, you will be entitled to a monthly benefit equal to your PIA. If you retire prior to full retirement age your monthly benefit will be reduced as explained in §§ 404.410-404.413. Benefits to other members of your family are a specified percentage of your PIA as explained in subpart D. Total benefits to your family are subject to a maximum as explained in § 404.403.


(b) How is this subpart organized? (1) In §§ 404.201 through 404.204, we explain some introductory matters.


(2) In §§ 404.210 through 404.213, we describe the average-indexed-monthly-earnings method we use to compute the primary insurance amount (PIA) for workers who attain age 62 (or become disabled or die before age 62) after 1978.


(3) In §§ 404.220 through 404.222, we describe the average-monthly-wage method we use to compute the PIA for workers who attain age 62 (or become disabled or die before age 62) before 1979.


(4) In §§ 404.230 through 404.233, we describe the guaranteed alternative method we use to compute the PIA for people who attain age 62 after 1978 but before 1984.


(5) In §§ 404.240 through 404.243, we describe the old-start method we use to compute the PIA for those who had all or substantially all of their social security covered earnings before 1951.


(6) In §§ 404.250 through 404.252, we describe special rules we use to compute the PIA for a worker who previously had a period of disability.


(7) In §§ 404.260 through 404.261, we describe how we compute the special minimum PIA for long-term, low-paid workers.


(8) In §§ 404.270 through 404.278, we describe how we automatically increase your PIA because of increases in the cost of living.


(9) In §§ 404.280 through 404.288, we describe how and when we will recompute your PIA to include additional earnings which were not used in the original computation.


(10) In § 404.290 we describe how and when we will recalculate your PIA.


(11) Appendices I-VII contain material such as figures and formulas that we use to compute PIAs.


[68 FR 4701, Jan. 30, 2003]


§ 404.202 Other regulations related to this subpart.

This subpart is related to several others. In subpart B of this part, we describe how you become insured for social security benefits as a result of your work in covered employment. In subpart D, we discuss the different kinds of social security benefits available – old-age and disability benefits for you and benefits for your dependents and survivors – the amount of the benefits, and the requirements you and your family must meet to qualify for them; your work status, your age, the size of your family, and other factors may affect the amount of the benefits for you and your family. Rules relating to deductions, reductions, and nonpayment of benefits we describe in subpart E. In subpart F of this part, we describe what we do when a recalculation or recomputation of your primary insurance amount (as described in this subpart) results in our finding that you and your family have been overpaid or underpaid. In subparts G and H of this part, we tell how to apply for benefits and what evidence is needed to establish entitlement to them. In subpart J of this part, we describe how benefits are paid. Then in subparts I, K, N, and O of this part, we discuss your earnings that are taxable and creditable for social security purposes (and how we keep records of them), and deemed military wage credits which may be used in finding your primary insurance amount.


§ 404.203 Definitions.

(a) General definitions. As used in this subpart –


Ad hoc increase in primary insurance amounts means an increase in primary insurance amounts enacted by the Congress and signed into law by the President.


Entitled means that a person has applied for benefits and has proven his or her right to them for a given period of time.


We, us, or our means the Social Security Administration.


You or your means the insured worker who has applied for benefits or a deceased insured worker on whose social security earnings record someone else has applied.


(b) Other definitions. To make it easier to find them, we have placed other definitions in the sections of this subpart in which they are used.


[47 FR 30734, July 15, 1982, as amended at 62 FR 38450, July 18, 1997]


§ 404.204 Methods of computing primary insurance amounts – general.

(a) General. We compute most workers’ primary insurance amounts under one of two major methods. There are, in addition, several special methods of computing primary insurance amounts which we apply to some workers. Your primary insurance amount is the highest of all those computed under the methods for which you are eligible.


(b) Major methods. (1) If after 1978 you reach age 62, or become disabled or die before age 62, we compute your primary insurance amount under what we call the average-indexed-monthly-earnings method, which is described in §§ 404.210 through 404.212. The earliest of the three dates determines the computation method we use.


(2) If before 1979 you reached age 62, became disabled, or died, we compute your primary insurance amount under what we call the average-monthly-wage method, described in §§ 404.220 through 404.222.


(c) Special methods. (1) Your primary insurance amount, computed under any of the special methods for which you are eligible as described in this paragraph, may be substituted for your primary insurance amount computed under either major method described in paragraph (b) of this section.


(2) If you reach age 62 during the period 1979-1983, your primary insurance amount is guaranteed to be the highest of –


(i) The primary insurance amount we compute for you under the average-indexed-monthly-earnings method;


(ii) The primary insurance amount we compute for you under the average-monthly-wage method, as modified by the rules described in §§ 404.230 through 404.233; or


(iii) The primary insurance amount computed under what we call the old-start method; as described in §§ 404.240 through 404.242.


(3) If you had all or substantially all of your social security earnings before 1951, we will also compute your primary insurance amount under what we call the old-start method.


(4) We compute your primary insurance amount under the rules in §§ 404.250 through 404.252, if –


(i) You were disabled and received social security disability insurance benefits sometime in your life;


(ii) Your disability insurance benefits were terminated because of your recovery or because you engaged in substantial gainful activity; and


(iii) You are, after 1978, re-entitled to disability insurance benefits, or entitled to old-age insurance benefits, or have died.


(5) In some situations, we use what we call a special minimum computation, described in §§ 404.260 through 404.261, to find your primary insurance amount. Computations under this method reflect long-term, low-wage attachment to covered work.


Average-Indexed-Monthly-Earnings Method of Computing Primary Insurance Amounts

§ 404.210 Average-indexed-monthly-earnings method.

(a) Who is eligible for this method. If after 1978, you reach age 62, or become disabled or die before age 62, we will compute your primary insurance amount under the average-indexed-monthly-earnings method.


(b) Steps in computing your primary insurance amount under the average-indexed-monthly-earnings method. We follow these three major steps in computing your primary insurance amount:


(1) First, we find your average indexed monthly earnings, as described in § 404.211;


(2) Second, we find the benefit formula in effect for the year you reach age 62, or become disabled or die before age 62, as described in § 404.212; and


(3) Then, we apply that benefit formula to your average indexed monthly earnings to find your primary insurance amount, as described in § 404.212.


(4) Next, we apply any automatic cost-of-living or ad hoc increases in primary insurance amounts that became effective in or after the year you reached age 62, unless you are receiving benefits based on the minimum primary insurance amount, in which case not all the increases may be applied, as described in § 404.277.


§ 404.211 Computing your average indexed monthly earnings.

(a) General. In this method, your social security earnings after 1950 are indexed, as described in paragraph (d) of this section, then averaged over the period of time you can reasonably have been expected to have worked in employment or self-employment covered by social security. (Your earnings before 1951 are not used in finding your average indexed monthly earnings.)


(b) Which earnings may be used in computing your average indexed monthly earnings – (1) Earnings. In computing your average indexed monthly earnings, we use wages, compensation, self-employment income, and deemed military wage credits (see §§ 404.1340 through 404.1343) that are creditable to you for social security purposes for years after 1950.


(2) Computation base years. We use your earnings in your computation base years in finding your average indexed monthly earnings. All years after 1950 up to (but not including) the year you become entitled to old-age or disability insurance benefits, and through the year you die if you had not been entitled to old-age or disability benefits, are computation base years for you. The year you become entitled to benefits and following years may be used as computation base years in a recomputation if their use would result in a higher primary insurance amount. (See §§ 404.280 through 404.287.) However, years after the year you die may not be used as computation base years even if you have earnings credited to you in those years. Computation base years do not include years wholly within a period of disability unless your primary insurance amount would be higher by using the disability years. In such situations, we count all the years during the period of disability, even if you had no earnings in some of them.


(c) Average of the total wages. Before we compute your average indexed monthly earnings, we must first know the “average of the total wages” of all workers for each year from 1951 until the second year before you become eligible. The average of the total wages for years after 1950 are shown in appendix I. Corresponding figures for more recent years which have not yet been incorporated into this appendix are published in the Federal Register on or before November 1 of the succeeding year. “Average of the total wages” (or “average wage”) means:


(1) For the years 1951 through 1977, four times the amount of average taxable wages that were reported to the Social Security Administration for the first calendar quarter of each year for social security tax purposes. For years prior to 1973, these average wages were determined from a sampling of these reports.


(2) For the years 1978 through 1990, all remuneration reported as wages on Form W-2 to the Internal Revenue Service for all employees for income tax purposes, divided by the number of wage earners. We adjusted those averages to make them comparable to the averages for 1951-1977. For years after 1977, the term includes remuneration for services not covered by social security and remuneration for covered employment in excess of that which is subject to FICA contributions.


(3) For years after 1990, all remuneration reported as wages on Form W-2 to the Internal Revenue Service for all employees for income tax purposes, including remuneration described in paragraph (c)(2) of this section, plus contributions to certain deferred compensation plans described in section 209(k) of the Social Security Act (also reported on Form W-2), divided by the number of wage earners. If both distributions from and contributions to any such deferred compensation plan are reported on Form W-2, we will include only the contributions in the calculation of the average of the total wages. We will adjust those averages to make them comparable to the averages for 1951-1990.


(d) Indexing your earnings. (1) The first step in indexing your social security earnings is to find the relationship (under paragraph (d)(2) of this section) between –


(i) The average wage of all workers in your computation base years; and


(ii) The average wage of all workers in your indexing year. As a general rule, your indexing year is the second year before the earliest of the year you reach age 62, or become disabled or die before age 62. However, your indexing year is determined under paragraph (d)(4) of this section if you die before age 62, your surviving spouse or surviving divorced spouse is first eligible for benefits after 1984, and the indexing year explained in paragraph (d)(4) results in a higher widow(er)’s benefit than results from determining the indexing year under the general rule.


(2) To find the relationship, we divide the average wages for your indexing year, in turn, by the average wages for each year beginning with 1951 and ending with your indexing year. We use the quotients found in these divisions to index your earnings as described in paragraph (d)(3) of this section.


(3) The second step in indexing your social security earnings is to multiply the actual year-by-year dollar amounts of your earnings (up to the maximum amounts creditable, as explained in §§ 404.1047 and 404.1096 of this part) by the quotients found in paragraph (d)(2) of this section for each of those years. We round the results to the nearer penny. (The quotient for your indexing year is 1.0; this means that your earnings in that year are used in their actual dollar amount; any earnings after your indexing year that may be used in computing your average indexed monthly earnings are also used in their actual dollar amount.)



Example:Ms. A reaches age 62 in July 1979. Her year-by-year social security earnings since 1950 are as follows:

Year
Earnings
1951$3,200
19523,400
19533,300
19543,600
19553,700
19563,700
19574,000
19584,200
19594,400
19604,500
19612,800
19622,200
19630
19640
19653,700
19664,500
19675,400
19686,200
19696,900
19707,300
19717,500
19727,800
19738,200
19749,000
19759,900
197611,100
19779,900
197811,000
Step 1. The first step in indexing Ms. A’s earnings is to find the relationship between the general wage level in Ms. A’s indexing year (1977) and the general wage level in each of the years 1951-1976. We refer to appendix I for average wage figures, and perform the following computations:

Year
I. 1977 general wage level
II. Nationwide average of the total wages
III. Column I divided by column II equals relationship
1951$9,779.44$2,799.163.4937053
19529,779.442,973.323.2890641
19539,779.443,139.443.1150269
19549,779.443,155.643.0990354
19559,779.443,301.442.9621741
19569,779.443,532.362.7685287
19579,779.443,641.722.6853904
19589,779.443,673.802.6619413
19599,779.443,855.802.5362934
19609,779.444,007.122.4405159
19619,779.444,086.762.3929568
19629,779.444,291.402.2788461
19639,779.444,396.642.2242986
19649,779.444,576.322.1369659
19659,779.444,658.722.0991689
19669,779.444,938.361.9803012
19679,779.445,213.441.8758133
19689,779.445,571.761.7551797
19699,779.445,893.761.6592871
19709,779.446,186.241.5808375
19719,779.446,497.081.5052054
19729,779.447,133.801.3708599
19739,779.447,580.161.2901364
19749,779.448,030.761.2177478
19759,779.448,630.921.1330704
19769,779.449,226.481.0599318
19779,779.449,779.441.0000000
Step 2. After we have found these indexing quotients, we multiply Ms. A’s actual year-by-year earnings by them to find her indexed earnings, as shown below:

Year
I. Actual earnings
II. Indexing quotient
III. Column I multiplied by column II equals indexed earnings
1951$3,2003.4937053$11,179.86
19523,4003.289064111,182.82
19533,3003.115026910,279.59
19543,6003.099035411,156.53
19553,7002.962174110,960.04
19563,7002.768528710,243.56
19574,0002.685390410,741.56
19584,2002.661941311,180.15
19594,4002.536293411,159.69
19604,5002.440515910,982.32
19612,8002.39295686,700.28
19622,2002.27884615,013.46
196302.22429860
196402.13696590
19653,7002.09916897,766.92
19664,5001.98030128,911.36
19675,4001.875813310,129.39
19686,2001.755179710,882.11
19696,9001.659287111,449.08
19707,3001.580837511,540.11
19717,5001.505205411,289.04
19727,8001.370859910,692.71
19738,2001.290136410,579.12
19749,0001.217747810,959.73
19759,9001.133070411,217.40
197611,1001.059931811,765.24
19779,9001.00000009,900.00
197811,000011,000.00

(4) We calculate your indexing year under this paragraph if you, the insured worker, die before reaching age 62, your surviving spouse or surviving divorced spouse is first eligible after 1984, and the indexing year calculated under this paragraph results in a higher widow(er)’s benefit than results from the indexing year calculated under the general rule explained in paragraph (d)(1)(ii). For purposes of this paragraph, the indexing year is never earlier than the second year before the year of your death. Except for this limitation, the indexing year is the earlier of –


(i) The year in which you, the insured worker, attained age 60, or would have attained age 60 if you had lived, and


(ii) The second year before the year in which the surviving spouse or the surviving divorced spouse becomes eligible for widow(er)’s benefits, i.e., has attained age 60, or is age 50-59 and disabled.


(e) Number of years to be considered in finding your average indexed monthly earnings. To find the number of years to be used in computing your average indexed monthly earnings –


(1) We count the years beginning with 1951, or (if later) the year you reach age 22, and ending with the earliest of the year before you reach age 62, become disabled, or die. Years wholly or partially within a period of disability (as defined in § 404.1501(b) of subpart P of this part) are not counted unless your primary insurance amount would be higher. In that case, we count all the years during the period of disability, even though you had no earnings in some of those years. These are your elapsed years. From your elapsed years, we then subtract up to 5 years, the exact number depending on the kind of benefits to which you are entitled. You cannot, under this procedure, have fewer than 2 benefit computation years.


(2) For computing old-age insurance benefits and survivors insurance benefits, we subtract 5 from the number of your elapsed years. See paragraphs (e) (3) and (4) of this section for the dropout as applied to disability benefits. This is the number of your benefit computation years; we use the same number of your computation base years (see paragraph (b)(2) of this section) in computing your average indexed monthly earnings. For benefit computation years, we use the years with the highest amounts of earnings after indexing. They may include earnings from years that were not indexed, and must include years of no earnings if you do not have sufficient years with earnings. You cannot have fewer than 2 benefit computation years.


(3) Where the worker is first entitled to disability insurance benefits (DIB) after June 1980, there is an exception to the usual 5 year dropout provision explained in paragraph (e)(2) of this section. (For entitlement before July 1980, we use the usual dropout.) We call this exception the disability dropout. We divide the elapsed years by 5 and disregard any fraction. The result, which may not exceed 5, is the number of dropout years. We subtract that number from the number of elapsed years to get the number of benefit computation years, which may not be fewer than 2. After the worker dies, the disability dropout no longer applies and we use the basic 5 dropout years to compute benefits for survivors. We continue to apply the disability dropout when a person becomes entitled to old-age insurance benefits (OAIB), unless his or her entitlement to DIB ended at least 12 months before he or she became eligible for OAIB. For first DIB entitlement before July 1980, we use the rule in paragraph (e)(2) of this section.


(4) For benefits payable after June 1981, the disability dropout might be increased by the child care dropout. If the number of disability dropout years is fewer than 3, we will drop out a benefit computation year for each benefit computation year that the worker meets the child care requirement and had no earnings, until the total of all dropout years is 3. The child care requirement for any year is that the worker must have been living with his or her child (or his or her spouse’s child) substantially throughout any part of any calendar year that the child was alive and under age 3. In actual practice, no more than 2 child care years may be dropped, because of the combined effect of the number of elapsed years, 1-for-5 dropout years (if any), and the computation years required for the computation.



Example:Ms. M., born August 4, 1953, became entitled to disability insurance benefits (DIB) beginning in July 1980 based on a disability which began January 15, 1980. In computing the DIB, we determined that the elapsed years are 1975 through 1979, the number of dropout years is 1 (5 elapsed years divided by 5), and the number of computation years is 4. Since Ms. M. had no earnings in 1975 and 1976, we drop out 1975 and use her earnings for the years 1977 through 1979.

Ms. M. lived with her child, who was born in 1972, in all months of 1973 and 1974 and did not have any earnings in those years. We, therefore, recompute Ms. M.’s DIB beginning with July 1981 to give her the advantage of the child care dropout. To do this, we reduce the 4 computation years by 1 child care year to get 3 computation years. Because the child care dropout cannot be applied to computation years in which the worker had earnings, we can drop only one of Ms. M.’s computation years, i.e., 1976, in addition to the year 1975 which we dropped in the initial computation.


(i) Living with means that you and the child ordinarily live in the same home and you exercise, or have the right to exercise, parental control. See § 404.366(c) for a further explanation.


(ii) Substantially throughout any part of any calendar year means that any period you were not living with the child during a calendar year did not exceed 3 months. If the child was either born or attained age 3 during the calendar year, the period of absence in the year cannot have exceeded the smaller period of 3 months, or one-half the time after the child’s birth or before the child attained age 3.


(iii) Earnings means wages for services rendered and net earnings from self-employment minus any net loss for a taxable year. See § 404.429 for a further explanation.


(f) Your average indexed monthly earnings. After we have indexed your earnings and found your benefit computation years, we compute your average indexed monthly earnings by –


(1) Totalling your indexed earnings in your benefit computation years;


(2) Dividing the total by the number of months in your benefit computation years; and


(3) Rounding the quotient to the next lower whole dollar. if not already a multiple of $1.



Example:From the example in paragraph (d) of this section, we see that Ms. A reaches age 62 in 1979. Her elapsed years are 1951-1978 (28 years). We subtract 5 from her 28 elapsed years to find that we must use 23 benefit computation years. This means that we will use her 23 highest computation base years to find her average indexed monthly earnings. We exclude the 5 years 1961-1965 and total her indexed earnings for the remaining years, i.e., the benefit computation years (including her unindexed earnings in 1977 and 1978) and get $249,381.41. We then divide that amount by the 276 months in her 23 benefit computation years and find her average indexed monthly earnings to be $903.56, which is rounded down to $903.

[47 FR 30734, July 15, 1982; 47 FR 35479, Aug. 13, 1982, as amended at 48 FR 11695, Mar. 21, 1983; 51 FR 4482, Feb. 5, 1986; 57 FR 1381, Jan. 14, 1992]


§ 404.212 Computing your primary insurance amount from your average indexed monthly earnings.

(a) General. We compute your primary insurance amount under the average-indexed-monthly-earnings method by applying a benefit formula to your average indexed monthly earnings.


(b) Benefit formula. (1) We use the applicable benefit formula in appendix II for the year you reach age 62, become disabled, or die whichever occurs first. If you die before age 62, and your surviving spouse or surviving divorced spouse is first eligible after 1984, we may compute the primary insurance amount, for the purpose of paying benefits to your widow(er), as if you had not died but reached age 62 in the second year after the indexing year that we computed under the provisions of § 404.211(d)(4). We will not use this primary insurance amount for computing benefit amounts for your other survivors or for computing the maximum family benefits payable on your earnings record. Further, we will only use this primary insurance amount if it results in a higher widow(er)’s benefit than would result if we did not use this special computation.


(2) The dollar amounts in the benefit formula are automatically increased each year for persons who attain age 62, or who become disabled or die before age 62 in that year, by the same percentage as the increase in the average of the total wages (see appendix I).


(3) We will publish benefit formulas for years after 1979 in the Federal Register at the same time we publish the average of the total wage figures. We begin to use a new benefit formula as soon as it is applicable, even before we periodically update appendix II.


(4) We may use a modified formula, as explained in § 404.213, if you are entitled to a pension based on your employment which was not covered by Social Security.


(c) Computing your primary insurance amount from the benefit formula. We compute your primary insurance amount by applying the benefit formula to your average indexed monthly earnings and adding the results for each step of the formula. For computations using the benefit formulas in effect for 1979 through 1982, we round the total amount to the next higher multiple of $0.10 if it is not a multiple of $0.10 and for computations using the benefit formulas effective for 1983 and later years, we round to the next lower multiple of $0.10. (See paragraph (e) of this section for a discussion of the minimum primary insurance amount.)


(d) Adjustment of your primary insurance amount when entitlement to benefits occurs in a year after attainment of age 62, disability or death. If you (or your survivors) do not become entitled to benefits in the same year you reach age 62, become disabled, or die before age 62, we compute your primary insurance amount by –


(1) Computing your average indexed monthly earnings as described in § 404.211;


(2) Applying to your average indexed monthly earnings the benefit formula for the year in which you reach age 62, or become disabled or die before age 62; and


(3) Applying to the primary insurance amount all automatic cost-of-living and ad hoc increases in primary insurance amounts that have gone into effect in or after the year you reached age 62, became disabled, or died before age 62. (See § 404.277 for special rules on minimum benefits, and appendix VI for a table of percentage increases in primary insurance amounts since December 1978. Increases in primary insurance amounts are published in the Federal Register and we periodically update appendix VI.)


(e) Minimum primary insurance amount. If you were eligible for benefits, or died without having been eligible, before 1982, your primary insurance amount computed under this method cannot be less than $122. This minimum benefit provision has been repealed effective with January 1982 for most workers and their families where the worker initially becomes eligible for benefits in that or a later month, or dies in January 1982 or a later month without having been eligible before January 1982. For members of a religious order who are required to take a vow of poverty, as explained in 20 CFR 404.1024, and which religious order elected Social Security coverage before December 29, 1981, the repeal is effective with January 1992 based on first eligibility or death in that month or later.


[47 FR 30734, July 15, 1982, as amended at 48 FR 46142, Oct. 11, 1983; 51 FR 4482, Feb. 5, 1986; 52 FR 47916, Dec. 17, 1987]


§ 404.213 Computation where you are eligible for a pension based on your noncovered employment.

(a) When applicable. Except as provided in paragraph (d) of this section, we will modify the formula prescribed in § 404.212 and in appendix II of this subpart in the following situations:


(1) You become eligible for old-age insurance benefits after 1985; or


(2) You become eligible for disability insurance benefits after 1985; and


(3) For the same months after 1985 that you are entitled to old-age or disability benefits, you are also entitled to a monthly pension(s) for which you first became eligible after 1985 based in whole or part on your earnings in employment which was not covered under Social Security. We consider you to first become eligible for a monthly pension in the first month for which you met all requirements for the pension except that you were working or had not yet applied. In determining whether you are eligible for a pension before 1986, we consider all applicable service used by the pension-paying agency. (Noncovered employment includes employment outside the United States which is not covered under the United States Social Security system. Pensions from noncovered employment outside the United States include both pensions from social insurance systems that base benefits on earnings but not on residence or citizenship, and those from private employers. However, for benefits payable for months prior to January 1995, we will not modify the computation of a totalization benefit (see §§ 404.1908 and 404.1918) as a result of your entitlement to another pension based on employment covered by a totalization agreement. Beginning January 1995, we will not modify the computation of a totalization benefit in any case (see § 404.213(e)(8)).


(b) Amount of your monthly pension that we use. For purposes of computing your primary insurance amount, we consider the amount of your monthly pension(s) (or the amount prorated on a monthly basis) which is attributable to your noncovered work after 1956 that you are entitled to for the first month in which you are concurrently entitled to Social Security benefits. For applications filed before December 1988, we will use the month of earliest concurrent eligibility. In determining the amount of your monthly pension we will use, we will consider the following:


(1) If your pension is not paid on a monthly basis or is paid in a lump-sum, we will allocate it proportionately as if it were paid monthly. We will allocate this the same way we allocate lump-sum payments for a spouse or surviving spouse whose benefits are reduced because of entitlement to a Government pension. (See § 404.408a.)


(2) If your monthly pension is reduced to provide a survivor’s benefit, we will use the unreduced amount.


(3) If the monthly pension amount which we will use in computing your primary insurance amount is not a multiple of $0.10, we will round it to the next lower multiple of $0.10.


(c) How we compute your primary insurance amount. When you become entitled to old-age or disability insurance benefits and to a monthly pension, we will compute your primary insurance amount under the average-indexed-monthly-earnings method (§ 404.212) as modified by paragraph (c) (1) and (2) of this section. Where applicable, we will also consider the 1977 simplified old-start method (§ 404.241) as modified by § 404.243 and a special minimum primary insurance amount as explained in §§ 404.260 and 404.261. We will use the highest result from these three methods as your primary insurance amount. We compute under the average-indexed-monthly-earnings method, and use the higher primary insurance amount resulting from the application of paragraphs (c) (1) and (2) of this section, as follows:


(1) The formula in appendix II, except that instead of the first percentage figure (i.e., 90 percent), we use –


(i) 80 percent if you initially become eligible for old-age or disability insurance benefits in 1986;


(ii) 70 percent for initial eligibility in 1987;


(iii) 60 percent for initial eligibility in 1988;


(iv) 50 percent for initial eligibility in 1989;


(v) 40 percent for initial eligibility in 1990 and later years, or


(2) The formula in appendix II minus one-half the portion of your monthly pension which is due to noncovered work after 1956 and for which you were entitled in the first month you were entitled to both Social Security benefits and the monthly pension. If the monthly pension amount is not a multiple of $0.10, we will round to the next lower multiple of $0.10. To determine the portion of your pension which is due to noncovered work after 1956, we consider the total number of years of work used to compute your pension and the percentage of those years which are after 1956, and in which your employment was not covered. We take that percentage of your total pension as the amount which is due to your noncovered work after 1956.


(d) Alternate computation. (1) If you have more than 20 but less than 30 years of coverage as defined in the column headed “Alternate Computation Under § 404.213(d)” in appendix IV of this subpart, we will compute your primary insurance amount using the applicable percentage given below instead of the first percentage in appendix II of this subpart if the applicable percentage below is larger than the percentage specified in paragraph (c) of this section:


(i) For benefits payable for months before January 1989 –


Years of coverage
Percent
2980
2870
2760
2650

(ii) For benefits payable for months after December 1988 –


Years of coverage
Percent
2985
2880
2775
2670
2565
2460
2355
2250
2145

(2) If you later earn additional year(s) of coverage, we will recompute your primary insurance amount, effective with January of the following year.


(e) Exceptions. The computations in paragraph (c) of this section do not apply in the following situations:


(1) Payments made under the Railroad Retirement Act are not considered to be a pension from noncovered employment for the purposes of this section. See subpart O of this part for a discussion of railroad retirement benefits.


(2) You were entitled before 1986 to disability insurance benefits in any of the 12 months before you reach age 62 or again become disabled. (See § 404.251 for the appropriate computation.)


(3) You were a Federal employee performing service on January 1, 1984 to which Social Security coverage was extended on that date solely by reason of the amendments made by section 101 of the Social Security Amendments of 1983.


(4) You were an employee of a nonprofit organization who was exempt from Social Security coverage on December 31, 1983 unless you were previously covered under a waiver certificate which was terminated prior to that date.


(5) You have 30 years of coverage as defined in the column headed “Alternate Computation Under § 404.213(d)” in appendix IV of this subpart.


(6) Your survivors are entitled to benefits on your record of earnings. (After your death, we will recompute the primary insurance amount to nullify the effect of any monthly pension, based in whole or in part on noncovered employment, to which you had been entitled.)


(7) For benefits payable for months after December 1994, payments by the social security system of a foreign country which are based on a totalization agreement between the United States and that country are not considered to be a pension from noncovered employment for purposes of this section. See subpart T of this part for a discussion of totalization agreements.


(8) For benefits payable for months after December 1994, the computations in paragraph (c) do not apply in the case of an individual whose entitlement to U.S. social security benefits results from a totalization agreement between the United States and a foreign country.


(9) For benefits payable for months after December 1994, you are eligible after 1985 for monthly periodic benefits based wholly on service as a member of a uniformed service, including inactive duty training.


(f) Entitlement to a totalization benefit and a pension based on noncovered employment. If, before January 1995, you are entitled to a totalization benefit and to a pension based on noncovered employment that is not covered by a totalization agreement, we count your coverage from a foreign country with which the United States (U.S.) has a totalization agreement and your U.S. coverage to determine if you meet the requirements for the modified computation in paragraph (d) of this section or the exception in paragraph (e)(5) of this section.


(1) Where the amount of your totalization benefit will be determined using a computation method that does not consider foreign earnings (see § 404.1918), we will find your total years of coverage by adding your –


(i) Years of coverage from the agreement country (quarters of coverage credited under § 404.1908 divided by four) and


(ii) Years of U.S. coverage as defined for the purpose of computing the special minimum primary insurance amount under § 404.261.


(2) Where the amount of your totalization benefit will be determined using a computation method that does consider foreign earnings, we will credit your foreign earnings to your U.S. earnings record and then find your total years of coverage using the method described in § 404.261.


[52 FR 47916, Dec. 17, 1987, as amended at 55 FR 21382, May 24, 1990; 57 FR 22429, May 28, 1992; 60 FR 17444, Apr. 6, 1995; 60 FR 56513, Nov. 9, 1995]


Average-Monthly-Wage Method of Computing Primary Insurance Amounts

§ 404.220 Average-monthly-wage method.

(a) Who is eligible for this method. You must before 1979, reach age 62, become disabled or die to be eligible for us to compute your primary insurance amount under the average-monthly-wage method. Also, as explained in § 404.230, if you reach age 62 after 1978 but before 1984, you are eligible to have your primary insurance amount computed under a modified average-monthly-wage method if it is to your advantage. Being eligible for either the average-monthly-wage method or the modified average-monthly-wage method does not preclude your eligibility under the old-start method described in §§ 404.240 through 404.242.


(b) Steps in computing your primary insurance amount under the average-monthly-wage method. We follow these three major steps in computing your primary insurance amount under the average-monthly-wage method:


(1) First, we find your average monthly wage, as described in § 404.221;


(2) Second, we look at the benefit table in appendix III; and


(3) Then we find your primary insurance amount in the benefit table, as described in § 404.222.


(4) Finally, we apply any automatic cost-of-living or ad hoc increases that became effective in or after the year you reached age 62, or became disabled, or died before age 62, as explained in §§ 404.270 through 404.277.


§ 404.221 Computing your average monthly wage.

(a) General. Under the average-monthly-wage method, your social security earnings are averaged over the length of time you can reasonably have been expected to have worked under social security after 1950 (or after you reached age 21, if later).


(b) Which of your earnings may be used in computing your average monthly wage. (1) In computing your average monthly wage, we consider all the wages, compensation, self-employment income, and deemed military wage credits that are creditable to you for social security purposes. (The maximum amounts creditable are explained in §§ 404.1047 and 404.1096 of this part.)


(2) We use your earnings in your computation base years in computing your average monthly wage. All years after 1950 up to (but not including) the year you become entitled to old-age or disability insurance benefits, or through the year you die if you had not been entitled to old-age or disability benefits, are computation base years for you. Years after the year you die may not be used as computation base years even if you have earnings credited to you in them. However, years beginning with the year you become entitled to benefits may be used for benefits beginning with the following year if using them would give you a higher primary insurance amount. Years wholly within a period of disability are not computation base years unless your primary insurance amount would be higher if they were. In such situations, we count all the years during the period of disability, even if you had no earnings in some of them.


(c) Number of years to be considered in computing your average monthly wage. To find the number of years to be used in computing your average monthly wage –


(1) We count the years beginning with 1951 or (if later) the year you reached age 22 and ending with the year before you reached age 62, or became disabled, or died before age 62. Any part of a year – or years – in which you were disabled, as defined in § 404.1505, is not counted unless doing so would give you a higher average monthly wage. In that case, we count all the years during the period of disability, even if you had no earnings in some of those years. These are your elapsed years. (If you are a male and you reached age 62 before 1975, see paragraph (c)(2) of this section for the rules on finding your elapsed years.)


(2) If you are a male and you reached age 62 in –


(i) 1972 or earlier, we count the years beginning with 1951 and ending with the year before you reached age 65, or became disabled or died before age 65 to find your elapsed years;


(ii) 1973, we count the years beginning with 1951 and ending with the year before you reached age 64, or became disabled or died before age 64 to find your elapsed years; or


(iii) 1974, we count the years beginning with 1951 and ending with the year before you reached age 63, became disabled, or died before age 63 to find your elapsed years.


(3) Then we subtract 5 from the number of your elapsed years. This is the number of your benefit computation years; we use the same number of your computation base years in computing your average monthly wage. For benefit computation years, we use the years with the highest amounts of earnings, but they may include years of no earnings. You cannot have fewer than 2 benefit computation years.


(d) Your average monthly wage. After we find your benefit computation years, we compute your average monthly wage by –


(1) Totalling your creditable earnings in your benefit computation years;


(2) Dividing the total by the number of months in your benefit computation years; and


(3) Rounding the quotient to the next lower whole dollar if not already a multiple of $1.



Example:Mr. B reaches age 62 and becomes entitled to old-age insurance benefits in August 1978. He had no social security earnings before 1951 and his year-by-year social security earnings after 1950 are as follows:

Year
Earnings
1951$2,700
19522,700
19533,400
19543,100
19554,000
19564,100
19574,000
19584,200
19594,800
19604,800
19614,800
19624,800
19634,800
19641,500
19650
19660
19670
19683,100
19695,200
19707,100
19717,800
19728,600
19738,900
19749,700
197510,100
197610,800
197711,900
We first find Mr. B’s elapsed years, which are the 27 years 1951-1977. We subtract 5 from his 27 elapsed years to find that we must use 22 benefit computation years in computing his average monthly wage. His computation base years are 1951-1977, which are the years after 1950 and prior to the year he became entitled. This means that we will use his 22 computation base years with the highest earnings to compute his average monthly wage. Thus, we exclude the years 1964-1967 and 1951.

We total his earnings in his benefit computation years and get $132,700. We then divide that amount by the 264 months in his 22 benefit computation years and find his average monthly wage to be $502.65, which is rounded down to $502.


(e) “Deemed” average monthly wage for certain deceased veterans of World War II. Certain deceased veterans of World War II are “deemed” to have an average monthly wage of $160 (see §§ 404.1340 through 404.1343 of this part) unless their actual average monthly wage, as found in the method described in paragraphs (a) through (d) of this section is higher.


§ 404.222 Use of benefit table in finding your primary insurance amount from your average monthly wage.

(a) General. We find your primary insurance amount under the average-monthly-wage method in the benefit table in appendix III.


(b) Finding your primary insurance amount from benefit table. We find your average monthly wage in column III of the table. Your primary insurance amount appears on the same line in column IV (column II if you are entitled to benefits for any of the 12 months preceding the effective month in column IV). As explained in § 404.212(e), there is a minimum primary insurance amount of $122 payable for persons who became eligible or died after 1978 and before January 1982. There is also an alternative minimum of $121.80 (before the application of cost-of-living increases) for members of this group whose benefits were computed from the benefit table in effect in December 1978 on the basis of either the old-start computation method in §§ 404.240 through 404.242 or the guaranteed alternative computation method explained in §§ 404.230 through 404.233. However, as can be seen from the extended table in appendix III, the lowest primary insurance amount under this method is now $1.70 for individuals for whom the minimum benefit has been repealed.



Example:In the example in § 404.221(d), we computed Mr. B’s average monthly wage to be $502. We refer to the December 1978 benefit table in appendix III. Then we find his average monthly wage in column III of the table. Reading across, his primary insurance amount is on the same line in column IV and is $390.50. A 9.9 percent automatic cost-of-living benefit increase was effective for June 1979, increasing Mr. B’s primary insurance amount to $429.20, as explained in §§ 404.270 through 404.277. Then, we increase the $429.20 by the 14.3 percent June 1980 cost-of-living benefit increase and get $490.60, and by the 11.2 percent June 1981 increase to get $545.60.

[47 FR 30734, July 15, 1982, as amended at 48 FR 46142, Oct. 11, 1983]


Guaranteed Alternative for People Reaching Age 62 After 1978 but Before 1984

§ 404.230 Guaranteed alternative.

(a) General. If you reach age 62 after 1978 but before 1984, we compute your primary insurance amount under a modified average-monthly-wage method as a guaranteed alternative to your primary insurance amount computed under the average-indexed-monthly-earnings method. We also compute your primary insurance amount under the old-start method (§§ 404.240 through 404.242) and under the special rules for a person who had a period of disability (§§ 404.250 through 404.252), if you are eligible. In §§ 404.231 through 404.233, we explain the average-monthly-wage method as the alternative to the average-indexed-monthly-earnings method.


(b) Restrictions. (1) To qualify for this guaranteed-alternative computation, you must have some creditable earnings before 1979.


(2) You or your survivors do not qualify for a guaranteed-alternative computation if you were eligible (you attained age 62, became disabled, or died before age 62) for social security benefits based on your own earnings at any time before 1979 unless –


(i) Those benefits were disability insurance benefits which were terminated because you recovered from your disability or you engaged in substantial gainful activity; and


(ii) You spent at least 12 months without being eligible for disability benefits again.


(3) This guaranteed alternative method applies only to old-age insurance benefits and to survivor benefits where the deceased worker reached the month of his or her 62nd birthday after 1978 but before 1984 and died after reaching age 62.


§ 404.231 Steps in computing your primary insurance amount under the guaranteed alternative – general.

If you reach age 62 after 1978 but before 1984, we follow three major steps in finding your guaranteed alternative:


(a) First, we compute your average monthly wage, as described in § 404.232;


(b) Second, we find the primary insurance amount that corresponds to your average monthly wage in the benefit table in appendix III.


(c) Then we apply any automatic cost-of-living or ad hoc increases in primary insurance amounts that have become effective in or after the year you reached age 62.


§ 404.232 Computing your average monthly wage under the guaranteed alternative.

(a) General. With the exception described in paragraph (b) of this section, we follow the rules in § 404.221 to compute your average monthly wage.


(b) Exception. We do not use any year after the year you reach age 61 as a computation base year in computing your average monthly wage for purposes of the guaranteed alternative.


§ 404.233 Adjustment of your guaranteed alternative when you become entitled after age 62.

(a) If you do not become entitled to benefits at the time you reach age 62, we adjust the guaranteed alternative computed for you under § 404.232 as described in paragraph (b) of this section.


(b) To the primary insurance amount computed under the guaranteed alternative, we apply any automatic cost-of-living or ad hoc increases in primary insurance amounts that go into effect in the year you reach age 62 and in years up through the year you become entitled to benefits. (See appendix VI for a list of the percentage increases in primary insurance amounts since December 1978.)



Example:Mr. C reaches age 62 in January 1981 and becomes entitled to old-age insurance benefits in April 1981. He had no social security earnings before 1951 and his year-by-year social security earnings after 1950 are as follows:

Year
Earnings
1951$3,600
19523,600
19533,600
19543,600
19554,200
19564,200
19574,200
19584,200
19594,800
19604,800
19614,800
19624,800
19634,800
19644,800
19654,800
19666,600
19676,600
19687,800
19697,800
19707,800
19717,800
19729,000
197310,800
197413,200
197514,100
197615,300
197716,500
197817,700
197922,900
198025,900
198129,700
Mr. C’s elapsed years are the 30 years 1951 through 1980. We subtract 5 from his 30 elapsed years to find that we must use 25 benefit computation years in computing his average monthly wage. His computation base years are 1951 through 1980 which are years after 1950 up to the year he reached age 62. We will use his 25 computation base years with the highest earnings to compute his average monthly wage. Thus, we exclude the years 1951-1955. The year 1981 is not a base year for this computation.

We total his earnings in his benefit computation years and get $236,000. We then divide by the 300 months in his 25 benefit computation years, and find his average monthly wage to be $786.66 which is rounded down to $786.

The primary insurance amount in the benefit table in appendix III that corresponds to Mr. C’s average monthly wage is $521.70. The 9.9 percent and 14.3 percent cost of living increase for 1979 and 1980, respectively, are not applicable because Mr. C reached age 62 in 1981.

The average indexed monthly earnings method described in §§ 404.210 through 404.212 considers all of the earnings after 1950, including 1981 earnings which, in Mr. C’s case cannot be used in the guaranteed alternative method. Mr. C’s primary insurance amount under the average indexed earnings method is $548.40. Therefore, his benefit is based upon the $548.40 primary insurance amount. As in the guaranteed alternative method, Mr. C is not entitled to the cost of living increases for years before the year he reaches age 62.


Old-Start Method of Computing Primary Insurance Amounts

§ 404.240 Old-start method – general.

If you had all or substantially all your social security earnings before 1951, your primary insurance amount computed under the “1977 simplified old-start” method may be higher than any other primary insurance amount computed for you under any other method for which you are eligible. As explained in § 404.242, if you reach age 62 after 1978, your primary insurance amount computed under the old-start method is used, for purposes of the guaranteed alternative described in § 404.230, if the old-start primary insurance amount is higher than the one found under the average-monthly-wage method. We may use a modified computation, as explained in § 404.243, if you are entitled to a pension based on your employment which was not covered by Social Security.


[47 FR 30734, July 15, 1982, as amended at 52 FR 47917, Dec. 17, 1987]


§ 404.241 1977 simplified old-start method.

(a) Who is qualified. To qualify for the old-start computation, you must meet the conditions in paragraphs (a) (1), (2), or (3) of this section:


(1) You must –


(i) Have one “quarter of coverage” (see §§ 404.101 and 404.110 of this part) before 1951;


(ii) Have attained age 21 after 1936 and before 1950, or attained age 22 after 1950 and earned fewer than 6 quarters of coverage after 1950;


(iii) Have not had a period of disability which began before 1951, unless it can be disregarded, as explained in § 404.320 of this part; and,


(iv) Have attained age 62, become disabled, or died, after 1977.


(2)(i) You or your survivor becomes entitled to benefits for June 1992 or later;


(ii) You do not meet the conditions in paragraph (a)(1) of this section, and,


(iii) No person is entitled to benefits on your earnings record in the month before the month you or your survivor becomes entitled to benefits.


(3) A recomputation is first effective for June 1992 or later based on your earnings for 1992 or later.


(b) Steps in old-start computation. (1) First, we allocate your earnings during the period 1937-1950 as described in paragraph (c) of this section.


(2) Next, we compute your average monthly wage, as described in paragraph (d) of this section.


(3) Next, we apply the old-start formula to your average monthly wage, as described in paragraph (e)(1) of this section.


(4) Next, we apply certain increments to the amount computed in step (3), as described in paragraph (e)(2) of this section.


(5) Next, we find your primary insurance amount in the benefit table in appendix III, as described in paragraph (f)(1) of this section.


(6) Then, we apply automatic cost-of-living or ad hoc increases in primary insurance amounts to the primary insurance amount found in step (5), as described in paragraph (f)(2) of this section.


(c) Finding your computation base years under the old-start method. (1) Instead of using your actual year-by-year earnings before 1951, we find your computation base years for 1937-1950 (and the amount of earnings for each of them) by allocating your total 1937-1950 earnings among the years before 1951 under the following procedure:


(i) If you reached age 21 before 1950 and your total 1937-1950 earnings are not more than $3,000 times the number of years after the year you reached age 20 and before 1951 (a maximum of 14 years), we allocate your earnings equally among those years, and those years are your computation base years before 1951.


(ii) If you reached age 21 before 1950 and your total 1937-1950 earnings are more than $3,000 times the number of years after the year you reached age 20 and before 1951, we allocate your earnings at the rate of $3,000 per year for each year after you reached age 20 and before 1951 up to a maximum of 14 years. We credit any remainder in reverse order to years before age 21 in $3,000 increments and any amount left over of less than $3,000 to the year before the earliest year to which we credited $3,000. No more than $42,000 may be credited in this way and to no more than 14 years. Those years are your computation base years before 1951.


(iii) If you reached age 21 in 1950 or later and your total pre-1951 earnings are $3,000 or less, we credit the total to the year you reached age 20 and that year is your pre-1951 computation base year.


(iv) If you reached age 21 in 1950 or later and your total pre-1951 earnings are more than $3,000, we credit $3,000 to the year you reached age 20 and credit the remainder to earlier years (or year) in blocks of $3,000 in reverse order. We credit any remainder of less than $3,000 to the year before the earliest year to which we had credited $3,000. No more than $42,000 may be credited in this way and to no more than 14 years. Those years are your computation base years before 1951.


(v) If you die before 1951, we allocate your 1937-1950 earnings under paragraphs (c)(1) (i) through (iv), except that in determining the number of years, we will use the year of death instead of 1951. If you die before you attain age 21, the number of years in the period is equal to 1.


(vi) For purposes of paragraphs (c)(1) (i) through (v), if you had a period of disability which began before 1951, we will exclude the years wholly within a period of disability in determining the number of years.


(2)(i) All years after 1950 up to (but not including) the year you become entitled to old-age insurance or disability insurance benefits (or through the year you die if you had not become entitled to old-age or disability benefits) are also computation base years for you.


(ii) Years wholly within a period of disability are not computation base years unless your primary insurance amount would be higher if they were. In such situations, we count all the years during the period of disability, even if you had no earnings in some of them.



Example:Ms. D reaches age 62 in June 1979. Her total 1937-1950 social security earnings are $40,000 and she had social security earnings of $7,100 in 1976 and $6,300 in 1977. Since she reaches age 62 after 1978, we first compute her primary insurance amount under the average-indexed-monthly-earnings method (§§ 404.210 through 404.212). As of June 1981, it is $170.50, which is the minimum primary insurance amount applicable, because her average indexed monthly earnings of $50 would yield only $56.50 under the benefit formula. Ms. D reached age 62 after 1978 but before 1984 and her guaranteed alternative under the average-monthly-wage method as of June 1981 is $170.30, which is the minimum primary insurance amount based on average monthly wages of $48. (These amounts include the 9.9, the 14.3, and the 11.2 percent cost-of-living increases effective June 1979, June 1980, and June 1981 respectively.)

Ms. D is also eligible for the old-start method. We first allocate $3,000 of her 1937-1950 earnings to each of her 13 computation base years starting with the year she reached age 21 (1938) and ending with 1950. The remaining $1,000 is credited to the year she reached age 20. Ms. D, then, has 42 computation base years (14 before 1951 and 28 after 1950).


(d) Computing your average monthly wage under the old-start method. (1) First, we count your elapsed years, which are the years beginning with 1937 (or the year you reach 22, if later) and ending with the year before you reach age 62, or become disabled or die before age 62. (See § 404.211(e)(1) for the rule on how we treat years wholly or partially within a period of disability.)


(2) Next, we subtract 5 from the number of your elapsed years, and this is the number of computation years we must use. We then choose this number of your computation base years in which you had the highest earnings. These years are your benefit computation years. You must have at least 2 benefit computation years.


(3) Then we compute your average monthly wage by dividing your total creditable earnings in your benefit computation years by the number of months in these years and rounding the quotient to the next lower dollar if not already a multiple of $1.


(e) Old-start computation formula. We use the following formula to compute your primary insurance benefit, which we will convert to your primary insurance amount:


(1) We take 40 percent of the first $50 of your average monthly wage, plus 10 percent of the next $200 of your average monthly wage up to a total average monthly wage of $250. (We do not use more than $250 of your average monthly wage.)


(2) We increase the amount found in paragraph (e)(1) of this section by 1 percent for each $1,650 in your pre-1951 earnings, disregarding any remainder less than $1,650. We always increase the amount by at least 4 of these 1 percent increments but may not increase it by more than 14 of them.


(f) Finding your primary insurance amount under the old-start method. (1) In column I of the benefit table in appendix III we locate the amount (the primary insurance benefit) computed in paragraph (e) of this section and find the corresponding primary insurance amount on the same line in column IV of the table.


(2) We increase that amount by any automatic cost-of-living or ad hoc increases in primary insurance amounts effective since the beginning of the year in which you reached age 62, or became disabled or died before age 62. (See §§ 404.270 through 404.277.)



Example:From the example in paragraph (c)(2) of this section, we see that Ms. D’s elapsed years total 40 (number of years at ages 22 to 61, both inclusive). Her benefit computation years, therefore, must total 35. Since she has only 16 years of actual earnings, we must include 19 years of zero earnings in this old-start computation to reach the required 35 benefit computation years.

We next divide her total social security earnings ($53,400) by the 420 months in her benefit computation years and find her average monthly wage to be $127.

We apply the old-start computation formula to Ms. D’s average monthly wage as follows: 40 percent of the first $50 of her average monthly wage ($20.00), plus 10 percent of the remaining $77 of her average monthly wage ($7.70), for a total of $27.70.

We then apply 14 1-percent increments to that amount, increasing it by $3.88 to $31.58. We find $31.58 in column I of the December 1978 benefit table in appendix III and find her primary insurance amount of $195.90 on the same line in column IV. We apply the 9.9 percent automatic cost-of-living increase effective for June 1979 to $195.90 and get an old-start primary insurance amount of $215.30 which we then increase to $246.10 to reflect the 14.3 percent cost-of-living increase effective for June 1980, and to $273.70 to reflect the June 1981 increase. Since that primary insurance amount is higher than the $153.10 primary insurance amount computed under the average-monthly-wage method and the $153.30 primary insurance amount computed under the average-indexed-monthly-earnings method, we base Ms. D’s benefits (and those of her family) on $215.30 (plus later cost-of-living increases), which is the highest primary insurance amount.


[47 FR 30734, July 15, 1982, as amended at 55 FR 21382, May 24, 1990; 57 FR 23157, June 2, 1992]


§ 404.242 Use of old-start primary insurance amount as guaranteed alternative.

If your primary insurance amount as computed under the old-start method is higher than your primary insurance amount computed under the average-monthly-wage method, your old-start primary insurance amount will serve as the guaranteed alternative to your primary insurance amount computed under the average-indexed-monthly-earnings method, as described in § 404.230. However, earnings that you have in or after the year you reach age 62, or become disabled or die before age 62 are not used in an old-start computation in this situation.


§ 404.243 Computation where you are eligible for a pension based on noncovered employment.

The provisions of § 404.213 are applicable to computations under the old-start method, except for paragraphs (c) (1) and (2) and (d) of that section. Your primary insurance amount will be whichever of the following two amounts is larger:


(a) One-half the primary insurance amount computed according to § 404.241 (before application of the cost of living amount); or


(b) The primary insurance amount computed according to § 404.241 (before application of the cost of living amount), minus one-half the portion of your monthly pension which is due to noncovered work after 1956 and for which you were eligible in the first month you became eligible for Social Security benefits. If the result is not a multiple of $0.10, we will round to the next lower multiple of $0.10. (See § 404.213 (b)(3) if you are not eligible for a monthly pension in the first month you are entitled to Social Security benefits.) To determine the portion of your pension which is due to noncovered work after 1956, we consider the total number of years of work used to compute your pension and the percentage of those years which are after 1956 and in which your employment was not covered. We take that percentage of your total pension as the amount which is due to your noncovered work after 1956.


[52 FR 47918, Dec. 17, 1987]


Special Computation Rules for People Who Had a Period of Disability

§ 404.250 Special computation rules for people who had a period of disability.

If you were disabled at some time in your life, received disability insurance benefits, and those benefits were terminated because you recovered from your disability or because you engaged in substantial gainful activity, special rules apply in computing your primary insurance amount when you become eligible after 1978 for old-age insurance benefits or if you become re-entitled to disability insurance benefits or die. (For purposes of §§ 404.250 through 404.252, we use the term second entitlement to refer to this situation.) There are two sets of rules:


(a) Second entitlement within 12 months. If 12 months or fewer pass between the last month for which you received a disability insurance benefit and your second entitlement, see the rules in § 404.251; and


(b) Second entitlement after more than 12 months. If more than 12 months pass between the last month for which you received a disability insurance benefit and your second entitlement, see the rules in § 404.252.


§ 404.251 Subsequent entitlement to benefits less than 12 months after entitlement to disability benefits ended.

(a) Disability before 1979; second entitlement after 1978. In this situation, we compute your second-entitlement primary insurance amount by selecting the highest of the following:


(1) The primary insurance amount to which you were entitled when you last received a benefit, increased by any automatic cost-of-living or ad hoc increases in primary insurance amounts that took effect since then;


(2) The primary insurance amount resulting from a recomputation of your primary insurance amount, if one is possible; or


(3) The primary insurance amount computed for you as of the time of your second entitlement under any method for which you are qualified at that time, including the average-indexed-monthly-earnings method if the previous period of disability is disregarded.


(b) Disability and second entitlement after 1978. In this situation, we compute your second-entitlement primary insurance amount by selecting the highest of the following:


(1) The primary insurance amount to which you were entitled when you last received a benefit, increased by any automatic cost-of-living or ad hoc increases in primary insurance amount that took effect since then;


(2) The primary insurance amount resulting from a recomputation of your primary insurance amount, if one is possible (this recomputation may be under the average-indexed-monthly-earnings method only); or


(3) The primary insurance amount computed for you as of the time of your second entitlement under any method (including an old-start method) for which you are qualifed at that time.


(c) Disability before 1986; second entitlement after 1985. When applying the rule in paragraph (b)(3) of this section, we must consider your receipt of a monthly pension based on noncovered employment. (See § 404.213). However, we will disregard your monthly pension if you were previously entitled to disability benefits before 1986 and in any of the 12 months before your second entitlement.


[47 FR 30734, July 15, 1982, as amended at 52 FR 47918, Dec. 17, 1987]


§ 404.252 Subsequent entitlement to benefits 12 months or more after entitlement to disability benefits ended.

In this situation, we compute your second-entitlement primary insurance amount by selecting the higher of the following:


(a) New primary insurance amount. The primary insurance amount computed as of the time of your second entitlement under any of the computation methods for which you qualify at the time of your second entitlement; or


(b) Previous primary insurance amount. The primary insurance amount to which you were entitled in the last month for which you were entitled to a disability insurance benefit.


Special Minimum Primary Insurance Amounts

§ 404.260 Special minimum primary insurance amounts.

Regardless of the method we use to compute your primary insurance amount, if the special minimum primary insurance amount described in § 404.261 is higher, then your benefits (and those of your dependents or survivors) will be based on the special minimum primary insurance amount. Special minimum primary insurance amounts are not based on a worker’s average earnings, as are primary insurance amounts computed under other methods. Rather, the special minimum primary insurance amount is designed to provide higher benefits to people who worked for long periods in low-paid jobs covered by social security.


§ 404.261 Computing your special minimum primary insurance amount.

(a) Years of coverage. (1) The first step in computing your special minimum primary insurance amount is to find the number of your years of coverage, which is the sum of –


(i) The quotient found by dividing your total creditable social security earnings during the period 1937-1950 by $900, disregarding any fractional remainder; plus


(ii) The number of your computation base years after 1950 in which your social security earnings were at least the amounts shown in appendix IV. (Computation base years mean the same here as in other computation methods discussed in this subpart.)


(2) You must have at least 11 years of coverage to qualify for a special minimum primary insurance amount computation. However, special minimum primary insurance amounts based on little more than 10 years of coverage are usually lower than the regular minimum benefit that was in effect before 1982 (see §§ 404.212(e) and 404.222(b) of this part). In any situation where your primary insurance amount computed under another method is higher, we use that higher amount.


(b) Computing your special minimum primary insurance amount. (1) First, we subtract 10 from your years of coverage and multiply the remainder (at least 1 and no more than 20) by $11.50;


(2) Then we increase the amount found in paragraph (b)(1) of this section by any automatic cost-of-living or ad hoc increases that have become effective since December 1978 to find your special minimum primary insurance amount. See appendix V for the applicable table, which includes the 9.9 percent cost-of-living increase that became effective June 1979, the 14.3 percent increase that became effective June 1980, and the 11.2 percent increase that became effective June 1981.



Example:Ms. F, who attained age 62 in January 1979, had $10,000 in total social security earnings before 1951 and her post-1950 earnings are as follows:

Year
Earnings
1951$1,100
1952950
19530
19541,000
19551,100
19561,200
19570
19581,300
19590
19601,300
19610
19621,400
19631,300
19640
1965500
1966700
1967650
1968900
19691,950
19702,100
19712,000
19721,500
19732,700
19742,100
19752,600
19763,850
19774,150
19780
Her primary insurance amount under the average-indexed-monthly-earnings method as of June 1981 is $240.40 (based on average indexed monthly earnings of $229). Her guaranteed-alternative primary insurance amount under the average-monthly-wage method as of June 1981 is $255.80 (based on average monthly wages of $131).

However, Ms. F has enough earnings before 1951 to allow her 11 years of coverage before 1951 ($10,000 ÷ $900 = 11, plus a remainder, which we drop). She has sufficient earnings in 1951-52, 1954-56, 1958, 1960, 1962-63, 1969-71, 1973, and 1976-77 to have a year of coverage for each of those years. She thus has 15 years of coverage after 1950 and a total of 26 years of coverage. We subtract 10 from her years of coverage, multiply the remainder (16) by $11.50 and get $184.00. We then apply the June 1979, June 1980, and June 1981 automatic cost-of-living increases (9.9 percent, 14.3 percent, and 11.2 percent, respectively) to that amount to find her special minimum primary insurance amount of $202.30 effective June 1979, $231.30 effective June 1980, and $257.30 effective June 1981. (See appendices V and VI.) Since her special minimum primary insurance amount is higher than the primary insurance amounts computed for her under the other methods described in this subpart for which she is eligible, her benefits (and those of her family) are based on the special minimum primary insurance amount.


[47 FR 30734, July 15, 1982, as amended at 48 FR 46143, Oct. 11, 1983]


Cost-of-Living Increases

§ 404.270 Cost-of-living increases.

Your primary insurance amount may be automatically increased each December so it keeps up with rises in the cost of living. These automatic increases also apply to other benefit amounts, as described in § 404.271.


[47 FR 30734, July 15, 1982, as amended at 51 FR 12603, Apr. 14, 1986]


§ 404.271 When automatic cost-of-living increases apply.

Besides increases in the primary insurance amounts of current beneficiaries, automatic cost-of-living increases also apply to –


(a) The special minimum primary insurance amounts (described in §§ 404.260 through 404.261) of current and future beneficiaries;


(b) The primary insurance amounts of people who after 1978 become eligible for benefits or die before becoming eligible (beginning with December of the year they become eligible or die), although certain limitations are placed on the automatic adjustment of the frozen minimum primary insurance amount (as described in § 404.277); and


(c) The maximum family benefit amounts in column V of the benefit table in appendix III.


[47 FR 30734, July 15, 1982, as amended at 51 FR 12603, Apr. 14, 1986; 83 FR 21708, May 10, 2018]


§ 404.272 Indexes we use to measure the rise in the cost-of-living.

(a) The bases. To measure increases in the cost-of-living for annual automatic increase purposes, we use either:


(1) The revised Consumer Price Index (CPI) for urban wage earners and clerical workers as published by the Department of Labor, or


(2) The average wage index (AWI), which is the average of the annual total wages that we use to index (i.e., update) a worker’s past earnings when we compute his or her primary insurance amount (§ 404.211(c)).


(b) Effect of the OASDI fund ratio. Which of these indexes we use to measure increases in the cost-of-living depends on the Old-Age, Survivors, and Disability Insurance (OASDI) fund ratio.


(c) OASDI fund ratio for years after 1984. For purposes of cost-of-living increases, the OASDI fund ratio is the ratio of the combined assets in the Federal Old-Age and Survivors Insurance Trust Fund and the Federal Disability Insurance Trust Fund (see section 201 of the Social Security Act) on January 1 of a given year, to the estimated expenditures from the Funds in the same year. The January 1 balance consists of the assets (i.e., government bonds and cash) in the Federal Old-Age and Survivors Insurance Trust Fund and the Federal Disability Insurance Trust Fund, plus Federal Insurance Contributions Act (FICA) and Self-Employment Contributions Act (SECA) taxes transferred to these trust funds on January 1 of the given year, minus the outstanding amounts (principal and interest) owed to the Federal Hospital Insurance Trust Fund as a result of interfund loans. Estimated expenditures are amounts we expect to pay from the Old-Age and Survivors Insurance and the Disability Insurance Trust Funds during the year, including the net amount that we pay into the Railroad Retirement Account, but excluding principal repayments and interest payments to the Hospital Insurance Trust Fund and transfer payments between the Old-Age and Survivors Insurance and the Disability Insurance Trust Funds. The ratio as calculated under this rule is rounded to the nearest 0.1 percent.


(d) Which index we use. We use the CPI if the OASDI fund ratio is 15.0 percent or more for any year from 1984 through 1988, and if the ratio is 20.0 percent or more for any year after 1988. We use either the CPI or the AWI, depending on which has the lower percentage increase in the applicable measuring period (see § 404.274), if the OASDI fund ratio is less than 15.0 percent for any year from 1984 through 1988, and if the ratio is less than 20.0 percent for any year after 1988. For example, if the OASDI fund ratio for a year is 17.0 percent, the cost-of-living increase effective December of that year will be based on the CPI.


[51 FR 12603, Apr. 14, 1986]


§ 404.273 When are automatic cost-of-living increases effective?

We make automatic cost-of-living increases if the applicable index, either the CPI or the AWI, rises over a specified measuring period (see the rules on measuring periods in § 404.274). If the cost-of-living increase is to be based on an increase in the CPI, the increase is effective in December of the year in which the measuring period ends. If the increase is to be based on an increase in the AWI, the increase is effective in December of the year after the year in which the measuring period ends.


[69 FR 19925, Apr. 15, 2004]


§ 404.274 What are the measuring periods we use to calculate cost-of-living increases?

(a) General. Depending on the OASDI fund ratio, we measure the rise in one index or in both indexes during the applicable measuring period (described in paragraphs (b) and (c) of this section) to determine whether there will be an automatic cost-of-living increase and if so, its amount.


(b) Measuring period based on the CPI – (1) When the period begins. The measuring period we use for finding the amount of the CPI increase begins with the later of –


(i) Any calendar quarter in which an ad hoc benefit increase is effective; or


(ii) The third calendar quarter of any year in which the last automatic increase became effective.


(2) When the period ends. The measuring period ends with the third calendar quarter of the following year. If this measuring period ends in a year after the year in which an ad hoc increase was enacted or took effect, there can be no cost-of-living increase at that time. We will extend the measuring period to the third calendar quarter of the next year.


(c) Measuring period based on the AWI – (1) When the period begins. The measuring period we use for finding the amount of the AWI increase begins with the later of –


(i) The calendar year before the year in which an ad hoc benefit increase is effective; or


(ii) The calendar year before the year in which the last automatic increase became effective.


(2) When the period ends. The measuring period ends with the following year. If this measuring period ends in a year in which an ad hoc increase was enacted or took effect, there can be no cost-of-living increase at that time. We will extend the measuring period to the next calendar year.


[69 FR 19925, Apr. 15, 2004]


§ 404.275 How is an automatic cost-of-living increase calculated?

(a) Increase based on the CPI. We compute the average of the CPI for the quarters that begin and end the measuring period by adding the three monthly CPI figures, dividing the total by three, and rounding the result to the same number of decimal places as the published CPI figures. If the number of decimal places in the published CPI values differs between those used for the beginning and ending quarters, we use the number for the ending quarter. If the average for the ending quarter is higher than the average for the beginning quarter, we divide the average for the ending quarter by the average of the beginning quarter to determine the percentage increase in the CPI over the measuring period.


(b) Increase based on the AWI. If the AWI for the year that ends the measuring period is higher than the AWI for the year which begins the measuring period and all the other conditions for an AWI-based increase are met, we divide the higher AWI by the lower AWI to determine the percentage increase in the AWI.


(c) Rounding rules. We round the increase from the applicable paragraph (a) or (b) of this section to the nearest 0.1 percent by rounding 0.05 percent and above to the next higher 0.1 percent and otherwise rounding to the next lower 0.1 percent. For example, if the applicable index is the CPI and the increase in the CPI is 3.15 percent, we round the increase to 3.2 percent. We then apply this percentage increase to the amounts described in § 404.271 and round the resulting dollar amounts to the next lower multiple of $0.10 (if not already a multiple of $0.10).


(d) Additional increase. See § 404.278 for the additional increase that is possible.


[69 FR 19925, Apr. 15, 2004, as amended at 72 FR 2186, Jan. 18, 2007]


§ 404.276 Publication of notice of increase.

When we determine that an automatic cost-of-living increase is due, we publish in the Federal Register within 45 days of the end of the measuring period used in finding the amount of the increase –


(a) The fact that an increase is due;


(b) The amount of the increase;


(c) The increased special minimum primary insurance amounts; and


(d) The range of increased maximum family benefits that corresponds to the range of increased special minimum primary insurance amounts.


§ 404.277 When does the frozen minimum primary insurance amount increase because of cost-of-living adjustments?

(a) What is the frozen minimum primary insurance amount (PIA)? The frozen minimum is a minimum PIA for certain workers whose benefits are computed under the average-indexed-monthly-earnings method. Section 404.210(a) with § 404.212(e) explains when the frozen minimum applies.


(b) When does the frozen minimum primary insurance amount (PIA) increase automatically? The frozen minimum PIA increases automatically in every year in which you or your dependents or survivors are entitled to benefits and a cost-of-living increase applies.


(c) When are automatic increases effective for old-age or disability benefits based on a frozen minimum primary insurance amount (PIA)? Automatic cost-of-living increases apply to your frozen minimum PIA beginning with the earliest of:


(1) December of the year you become entitled to benefits and receive at least a partial benefit;


(2) December of the year you reach full retirement age (as defined in § 404.409) if you are entitled to benefits in or before the month you attain full retirement age, regardless of whether you receive at least a partial benefit; or


(3) December of the year you become entitled to benefits if that is after you attain full retirement age.


(d) When are automatic increases effective for survivor benefits based on a frozen minimum primary insurance amount (PIA)? (1) Automatic cost-of-living increases apply to the frozen minimum PIA used to determine survivor benefits in December of any year in which your child(ren), your surviving spouse caring for your child(ren), or your parent(s), are entitled to survivor benefits for at least one month.


(2) Automatic cost-of-living increases apply beginning with December of the earlier of:


(i) The year in which your surviving spouse or surviving divorced spouse (as defined in §§ 404.335 and 404.336) has attained full retirement age (as defined in § 404.409) and receives at least a partial benefit, or


(ii) The year in which your surviving spouse or surviving disabled spouse becomes entitled to benefits and receives at least a partial benefit.


(3) Automatic cost-of-living increases are not applied to the frozen minimum PIA in any year in which no survivor of yours is entitled to benefits on your social security record.


[68 FR 4702, Jan. 30, 2003]


§ 404.278 Additional cost-of-living increase.

(a) General. In addition to the cost-of-living increase explained in § 404.275 for a given year, we will further increase the amounts in § 404.271 if –


(1) The OASDI fund ratio is more than 32.0 percent in the given year in which a cost-of-living increase is due; and


(2) In any prior year, the cost-of-living increase was based on the AWI as the lower of the CPI and AWI.


(b) Measuring period for the additional increase – (1) To compute the additional increase for all individuals and for maximum benefits payable to a family, we begin with the year in which the insured individual became eligible for old-age or disability benefits to which he or she is currently entitled, or died before becoming eligible.


(2) Ending. The end of the measuring period is the year before the first year in which a cost-of-living increase is due based on the CPI and in which the OASDI fund ratio is more than 32.0 percent.


(c) Compounded percentage benefit increase. To compute the additional cost-of-living increase, we must first compute the compounded percentage benefit increase (CPBI) for both the cost-of-living increases that were actually paid during the measuring period and for the increases that would have been paid if the CPI had been the basis for all the increases.


(d) Computing the CPBI. The computation of the CPBI is as follows –


(1) Obtain the sum of (i) 1.000 and (ii) the actual cost-of-living increase percentage (expressed as a decimal) for each year in the measuring period;


(2) Multiply the resulting amount for the first year by that for the second year, then multiply that product by the amount for the third year, and continue until the last amount has been multiplied by the product of the preceding amounts;


(3) Subtract 1 from the last product;


(4) Multiply the remaining product by 100. The result is what we call the actual CPBI.


(5) Substitute the cost-of-living increase percentage(s) that would have been used if the increase(s) had been based on the CPI (for some years, this will be the percentage that was used), and do the same computations as in paragraphs (d) (1) through (4) of this section. The result is what we call the assumed CPBI.


(e) Computing the additional cost-of-living increase. To compute the precentage increase, we –


(1) Subtract the actual CPBI from the assumed CPBI;


(2) Add 100 to the actual CPBI;


(3) Divide the answer from paragraph (e)(1) of this section by the answer from paragraph (e)(2) of this section, multiply the quotient by 100, and round to the nearest 0.1. The result is the additional increase percentage, which we apply to the appropriate amount described in § 404.271 after that amount has been increased under § 404.275 for a given year. If that increased amount is not a multiple of $0.10, we will decrease it to the next lower multiple of $0.10.


(f) Restrictions on paying an additional cost-of-living increase. We will pay the additional increase to the extent necessary to bring the benefits up to the level they would have been if they had been increased based on the CPI. However, we will pay the additional increase only to the extent payment will not cause the OASDI fund ratio to drop below 32.0 percent for the year after the year in which the increase is effective.


[51 FR 12604, Apr. 21, 1986, as amended at 69 FR 19925, Apr. 15, 2004; 83 FR 21708, May 10, 2018]


Recomputing Your Primary Insurance Amount

§ 404.280 Recomputations.

At times after you or your survivors become entitled to benefits, we will recompute your primary insurance amount. Usually we will recompute only if doing so will increase your primary insurance amount. However, we will also recompute your primary insurance amount if you first became eligible for old-age or disability insurance benefits after 1985, and later become entitled to a pension based on your noncovered employment, as explained in § 404.213. There is no limit on the number of times your primary insurance amount may be recomputed, and we do most recomputations automatically. In the following sections, we explain:


(a) Why a recomputation is made (§ 404.281),


(b) When a recomputation takes effect (§ 404.282),


(c) Methods of recomputing (§§ 404.283 and 404.284),


(d) Automatic recomputations (§ 404.285),


(e) Requesting a recomputation (§ 404.286),


(f) Waiving a recomputation (§ 404.287), and


(g) Recomputing when you are entitled to a pension based on noncovered employment (§ 404.288).


[52 FR 47918, Dec. 17, 1987]


§ 404.281 Why your primary insurance amount may be recomputed.

(a) Earnings not included in earlier computation or recomputation. The most common reason for recomputing your primary insurance amount is to include earnings of yours that were not used in the first computation or in an earlier recomputation, as described in paragraphs (c) through (e) of this section. These earnings will result in a revised average monthly wage or revised average indexed monthly earnings.


(b) New computation method enacted. If a new method of computing or recomputing primary insurance amounts is enacted into law and you are eligible to have your primary insurance amount recomputed under the new method, we will recompute it under the new method if doing so would increase your primary insurance amount.


(c) Earnings in the year you reach age 62 or become disabled. In the initial computation of your primary insurance amount, we do not use your earnings in the year you become entitled to old-age insurance benefits or become disabled. However, we can use those earnings (called lag earnings) in a recomputation of your primary insurance amount. We recompute and begin paying you the higher benefits in the year after the year you become entitled to old-age benefits or become disabled.


(d) Earnings not reported to us in time to use them in the computation of your primary insurance amount. Because of the way reports of earnings are required to be submitted to us for years after 1977, the earnings you have in the year before you become entitled to old-age insurance benefits, or become disabled or in the year you die might not be reported to us in time to use them in computing your primary insurance amount. We recompute your primary insurance amount based on the new earnings information and begin paying you (or your survivors) the higher benefits based on the additional earnings, beginning with the month you became entitled or died.


(e) Earnings after entitlement that are used in a recomputation. Earnings that you have after you become entitled to benefits will be used in a recomputation of your primary insurance amount.


(f) Entitlement to a monthly pension. We will recompute your primary insurance amount if in a month after you became entitled to old-age or disability insurance benefits, you become entitled to a pension based on noncovered employment, as explained in § 404.213. Further, we will recompute your primary insurance amount after your death to disregard a monthly pension based on noncovered employment which affected your primary insurance amount.


[47 FR 30734, July 15, 1982, as amended at 52 FR 47918, Dec. 17, 1987]


§ 404.282 Effective date of recomputations.

Most recomputations are effective beginning with January of the calendar year after the year in which the additional earnings used in the recomputation were paid. However, a recomputation to include earnings in the year of death (whether or not paid before death) is effective for the month of death. Additionally if you first became eligible for old-age or disability insurance benefits after 1985 and you later also become entitled to a monthly pension based on noncovered employment, we will recompute your primary insurance amount under the rules in § 404.213; this recomputed Social Security benefit amount is effective for the first month you are entitled to the pension. Finally, if your primary insurance amount was affected by your entitlement to a pension, we will recompute the amount to disregard the pension, effective with the month of your death.


[47 FR 30734, July 15, 1982, as amended at 52 FR 47918, Dec. 17, 1987]


§ 404.283 Recomputation under method other than that used to find your primary insurance amount.

In some cases, we may recompute your primary insurance amount under a computation method different from the method used in the computation (or earlier recomputation) of your primary insurance amount, if you are eligible for a computation or recomputation under the different method.


§ 404.284 Recomputations for people who reach age 62, or become disabled, or die before age 62 after 1978.

(a) General. Years of your earnings after 1978 not used in the computation of your primary insurance amount (or in earlier recomputations) under the average-indexed-monthly-earnings method may be substituted for earlier years of your indexed earnings in a recomputation, but only under the average-indexed-monthly-earnings method. See § 404.288 for the rules on recomputing when you are entitled to a monthly pension based on noncovered employment.


(b) Substituting actual dollar amounts in earnings for earlier years of indexed earnings. When we recompute your primary insurance amount under the average-indexed-monthly earnings method, we use actual dollar amounts, i.e., no indexing, for earnings not included in the initial computation or earlier recomputation. These later earnings are substituted for earlier years of indexed or actual earnings that are lower.


(c) Benefit formula used in recomputation. The formula that was used in the first computation of your primary insurance amount is also used in recomputations of your primary insurance amount.


(d) Your recomputed primary insurance amount. We recompute your primary insurance amount by applying the benefit formula to your average indexed monthly earnings as revised to include additional earnings. See § 404.281. We then increase the recomputed PIA by the amounts of any automatic cost-of-living or ad hoc increases in primary insurance amounts that have become effective since you reached age 62, or became disabled or died before age 62.


(e) Minimum increase in primary insurance amounts. Your primary insurance amount may not be recomputed unless doing so would increase it by at least $1.



Example 1.Ms. A, whose primary insurance amount we computed to be $432.40 in June 1979 in §§ 404.210 through 404.212 (based on average indexed monthly earnings of $903), had earnings of $11,000 in 1979 which were not used in the initial computation of her primary insurance amount. We may recompute her primary insurance amount effective for January 1980. In this recomputation, her 1979 earnings may be substituted in their actual dollar amount for the lowest year of her indexed earnings that was used in the initial computation. In Ms. A’s case, we substitute the $11,000 for her 1966 indexed earnings of $8,911.36. Her total indexed earnings are now $251,470.05 and her new average indexed monthly earnings are $911. We apply to Ms. A’s new average indexed monthly earnings the same benefit formula we used in the initial computation. Doing so produces an amount of $396.00. An automatic cost-of-living increase of 9.9 percent was effective in June 1979. We increase the $396.00 amount by 9.9 percent to find Ms. A’s recomputed primary insurance amount of $435.30. Later we increased the primary insurance amount to $497.60 to reflect the 14.3 percent cost-of-living increase beginning June 1980 and to $553.40 to reflect the 11.2 percent cost-of-living increase beginning June 1981.


Example 2.Mr. B, whose primary insurance amount we computed to be $429.20 (based on average monthly wages of $502) in June 1978 in §§ 404.220 through 404.222, had earnings of $12,000 in 1978 which were not used in the initial computation of his primary insurance amount. We may recompute his primary insurance amount effective for January 1979. In this recomputation, his 1978 earnings are substituted for the lowest year of earnings used in the initial computation ($2,700 in 1952). Mr. B’s total earnings are now $142,000 and his new average monthly wage is $537.

We next find Mr. B’s new average monthly wage in column III of the December 1978 benefit table in appendix III. Reading across, we find his recomputed primary insurance amount on the same line in column IV, which is $407.70. We then apply the 9.9 percent, the 14.3 percent and the 11.2 percent automatic cost-of-living increases for June 1979, June 1980, and June 1981, respectively, to compute Mr. B’s primary insurance amount of $569.60.


(f) Guaranteed alternatives. We may recompute your primary insurance amount by any of the following methods for which you qualify, if doing so would result in a higher amount than the one computed under the average-indexed-monthly-earnings method. Earnings in or after the year you reach age 62 cannot be used.


(1) If you reached age 62 after 1978 and before 1984, we may recompute to include earnings for years before the year you reached age 62 by using the guaranteed alternative (§ 404.231). We will increase the result by any cost-of-living or ad hoc increases in the primary insurance amounts that have become effective in and after the year you reached age 62.


(2) We will also recompute under the old-start guarantee (§ 404.242) and the prior-disability guarantee (§ 404.252) if you meet the requirements of either or both these methods.


[47 FR 30734, July 15, 1982, as amended at 52 FR 47918, Dec. 17, 1987]


§ 404.285 Recomputations performed automatically.

Each year, we examine the earnings record of every retired, disabled, and deceased worker to see if the worker’s primary insurance amount may be recomputed under any of the methods we have described. When a recomputation is called for, we perform it automatically and begin paying the higher benefits based on your recomputed primary insurance amount for the earliest possible month that the recomputation can be effective. You do not have to request this service, although you may request a recomputation at an earlier date than one would otherwise be performed (see § 404.286). Doing so, however, does not allow your increased primary insurance amount to be effective any sooner than it would be under an automatic recomputation. You may also waive a recomputation if one would disadvantage you or your family (see § 404.287).


§ 404.286 How to request an immediate recomputation.

You may request that your primary insurance amount be recomputed sooner than it would be recomputed automatically. To do so, you must make the request in writing to us and provide acceptable evidence of your earnings not included in the first computation or earlier recomputation of your primary insurance amount. If doing so will increase your primary insurance amount, we will recompute it. However, we cannot begin paying higher benefits on the recomputed primary insurance amount any sooner than we could under an automatic recomputation, i.e., for January of the year following the year in which the earnings were paid or derived.


§ 404.287 Waiver of recomputation.

If you or your family would be disadvantaged in some way by a recomputation of your primary insurance amount, or you and every member of your family do not want your primary insurance amount to be recomputed for any other reason, you may waive (that is, give up your right to) a recomputation, but you must do so in writing. That you waive one recomputation, however, does not mean that you also waive future recomputations for which you might be eligible.


§ 404.288 Recomputing when you are entitled to a monthly pension based on noncovered employment.

(a) After entitlement to old-age or disability insurance benefits. If you first become eligible for old-age or disability insurance benefits after 1985 and you later become entitled to a monthly pension based on noncovered employment, we may recompute your primary insurance amount under the rules in § 404.213. When recomputing, we will use the amount of the pension to which you are entitled or deemed entitled in the first month that you are concurrently eligible for both the pension and old-age or disability insurance benefits. We will disregard the rule in § 404.284(e) that the recomputation must increase your primary insurance amount by at least $1.


(b) Already entitled to benefits and to a pension based on noncovered employment. If we have already computed or recomputed your primary insurance amount to take into account your monthly pension, we may later recompute for one of the reasons explained in § 404.281. We will recompute your primary insurance amount under the rules in §§ 404.213 and 404.284. Any increase resulting from the recomputation under the rules of § 404.284 will be added to the most recent primary insurance amount which we had computed to take into account your monthly pension.


(c) After your death. If one or more survivors are entitled to benefits after your death, we will recompute the primary insurance amount as though it had never been affected by your entitlement to a monthly pension based in whole or in part on noncovered employment.


[52 FR 47918, Dec. 17, 1987]


Recalculations of Primary Insurance Amounts

§ 404.290 Recalculations.

(a) Your primary insurance amount may be “recalculated” in certain instances. When we recalculate your primary amount, we refigure it under the same method we used in the first computation by taking into account –


(1) Earnings (including compensation for railroad service) incorrectly included or excluded in the first computation;


(2) Special deemed earnings credits including credits for military service (see subpart N of this part) and for individuals interned during World War II (see subpart K of this part), not available at the time of the first computation;


(3) Correction of clerical or mathematical errors; or


(4) Other miscellaneous changes in status.


(b) Unlike recomputations, which may only serve to increase your primary insurance amount, recalculations may serve to either increase or reduce it.


Appendixes to Subpart C of Part 404 – Note

The following appendices contain data that are needed in computing primary insurance amounts. Appendix I contains average of the total wages figures, which we use to index a worker’s earnings for purposes of computing his or her average indexed monthly earnings. Appendix II contains benefit formulas which we apply to a worker’s average indexed monthly earnings to find his or her primary insurance amount. Appendix III contains the benefit table we use to find a worker’s primary insurance amount from his or her average monthly wage. We use the figures in appendix IV to find your years of coverage for years after 1950 for purposes of your special minimum primary insurance amount. Appendix V contains the table for computing the special minimum primary insurance amount. Appendix VI is a table of the percentage increases in primary insurance amounts since 1978. Appendix VII is a table of the old-law contribution and benefit base that would have been effective under the Social Security Act without enactment of the 1977 amendments.


The figures in the appendices are by law automatically adjusted each year. We are required to announce the changes through timely publication in the Federal Register. The only exception to the requirement of publication in the Federal Register is the update of benefit amounts shown in appendix III. We update the benefit amounts for payment purposes but are not required by law to publish this extensive table in the Federal Register. We have not updated the table in appendix III, but the introductory paragraphs at appendix III explain how you can compute the current benefit amount.


When we publish the figures in the Federal Register, we do not change every one of these figures. Instead, we provide new ones for each year that passes. We continue to use the old ones for various computation purposes, as the regulations show. Most of the new figures for these appendices are required by law to be published by November 1 of each year. Notice of automatic cost-of-living increases in primary insurance amounts is required to be published within 45 days of the end of the applicable measuring period for the increase (see §§ 404.274 and 404.276). In effect, publication is required within 45 days of the end of the third calendar quarter of any year in which there is to be an automatic cost-of-living increase.


We begin to use the new data in computing primary insurance amounts as soon as required by law, even before we periodically update these appendices. If the data you need to find your primary insurance amount have not yet been included in the appendices, you may find the figures in the Federal Register on or about November 1.


[52 FR 8247, Mar. 17, 1987]


Appendix I to Subpart C of Part 404 – Average of the Total Wages for Years After 1950

Explanation: We use these figures to index your social security earnings (as described in § 404.211) for purposes of computing your average indexed monthly earnings.


Calendar year
Average of the total wages
1951$2,799.16
19522,973.32
19533,139.44
19543,155.64
19553,301.44
19563,532.36
19573,641.72
19583,673.80
19593,855.80
19604,007.12
19614,086.76
19624,291.40
19634,396.64
19644,576.32
19654,658.72
19664,938.36
19675,213.44
19685,571.76
19695,893.76
19706,186.24
19716,497.08
19727,133.80
19737,580.16
19748,030.76
19758,630.92
19769,226.48
19779,779.44
197810,556.03
197911,479.46
198012,513.46
198113,773.10
198214,531.34
198315,239.24
198416,135.07
198516,822.51
198617,321.82
198718,426.51
198819,334.04
198920,099.55
199021,027.98

[47 FR 30734, July 15, 1982, as amended at 52 FR 8247, Mar. 17, 1987; 57 FR 44096, Sept. 24, 1992]


Appendix II to Subpart C of Part 404 – Benefit Formulas Used With Average Indexed Monthly Earnings

As explained in § 404.212, we use one of the formulas below to compute your primary insurance amount from your average indexed monthly earnings (AIME). To select the appropriate formula, we find in the left-hand column the year after 1978 in which you reach age 62, or become disabled, or die before age 62. The benefit formula to be used in computing your primary insurance amount is on the same line in the right-hand columns. For example, if you reach age 62 or become disabled or die before age 62 in 1979, then we compute 90 percent of the first $180 of AIME, 32 percent of the next $905 of AIME, and 15 percent of AIME over $1,085. After we figure your amount for each step in the formula, we add the amounts. If the total is not already a multiple of $0.10, we round the total as follows:


(1) For computations using the benefit formulas in effect for 1979 through 1982, we round the total upward to the nearest $0.10, and


(2) For computations using the benefit formulas in effect for 1983 and later, we round the total downward to the nearest $0.10.


Benefit Formulas

Year you reach age 62
1
90 percent of the first –
plus 32 percent of the next –
plus 15 percent of AIME over –
1979$180$905$1,085
19801949771,171
19812111,0631,274
19822301,1581,388
19832541,2741,528
19842671,3451,612
19852801,4111,691
19862971,4931,790
19873101,5561,866
19883191,6031,922
19893391,7052,044
19903561,7892,145
19913701,8602,230
19923871,9462,333


1 Or become disabled or die before age 62.


[57 FR 44096, Sept. 24, 1992; 57 FR 45878, Oct. 5, 1992]


Appendix III to Subpart C of Part 404 – Benefit Table

This benefit table shows primary insurance amounts and maximum family benefits in effect in December 1978 based on cost-of-living increases which became effective for June 1978. (See § 404.403 for information on maximum family benefits.) You will also be able to find primary insurance amounts for an individual whose entitlement began in the period June 1977 through May 1978.


The benefit table in effect in December 1978 had a minimum primary insurance amount of $121.80. As explained in § 404.222(b), certain workers eligible, or who died without having been eligible, before 1982 had their benefit computed from this table. However, the minimum benefit provision was repealed for other workers by the 1981 amendments to the Act (the Omnibus Budget Reconciliation Act of 1981, Pub. L. 97-35 as modified by Pub. L. 97-123). As a result, this benefit table includes a downward extension from the former minimum of $121.80 to the lowest primary insurance amount now possible. The extension is calculated as follows. For each single dollar of average monthly wage in the benefit table, the primary insurance amount shown for December 1978 is $121.80 multiplied by the ratio of that average monthly wage to $76. The upper limit of each primary insurance benefit range in column I of the table is $16.20 multiplied by the ratio of the average monthly wage in column III of the table to $76. The maximum family benefit is 150 percent of the corresponding primary insurance amount.


The repeal of the minimum benefit provision is effective with January 1982 for most workers and their families where the worker initially becomes eligible for benefits after 1981 or dies after 1981 without having been eligible before January 1982. For members of a religious order who are required to take a vow of poverty, as explained in 20 CFR 404.1024, and which religious order elected Social Security coverage before December 29, 1981, the repeal is effective with January 1992 based on first eligibility or death in that month or later.


To use this table, you must first compute the primary insurance benefit (column I) or the average monthly wage (column III), then move across the same line to either column II or column IV as appropriate. To determine increases in primary insurance amounts since December 1978 you should see appendix VI. Appendix VI tells you, by year, the percentage of the increases. In applying each cost-of-living increase to primary insurance amounts, we round the increased primary insurance amount to the next lower multiple of $0.10 if not already a multiple of $0.10. (For cost-of-living increases which are effective before June 1982, we round to the next higher multiple of $0.10.)


Extended December 1978 Table of Benefits Effective January 1982

[In dollars]

I. Primary insurance benefit: If an individual’s primary insurance benefit (as determined under § 404.241(e)) is –
II. Primary insurance amount effective June 1977: Or his or her primary insurance amount is –
III. Average monthly wage: Or his or her average monthly wage (as determined under § 404.221) is –
IV. Primary insurance amount effective January 1982: Then his or her primary insurance amount is –
V. Maximum family benefits: And the maximum amount of benefits payable on the basis of his or her wages and self-employment income is –
At least –
But not more than –
At least –
But not more than –
11.702.60
0.42 223.305.00
0.43.63 334.907.40
.64.85 446.509.80
.861.06 558.1012.20
1.071.27 669.7014.60
1.281.49 7711.3017.00
1.501.70 8812.9019.40
1.711.91 9914.5021.80
1.922.13 101016.1024.20
2.142.34 111117.7026.60
2.352.55 121219.3029.00
2.562.77 131320.9031.40
2.782.98 141422.5033.80
2.993.19 151524.1036.20
3.203.41 161625.7038.60
3.423.62 171727.3041.00
3.633.83 181828.9043.40
3.844.05 191930.5045.80
4.064.26 202032.1048.20
4.274.47 212133.7050.60
4.484.68 222235.3053.00
4.694.90 232336.9055.40
4.915.11 242438.5057.80
5.125.32 252540.1060.20
5.335.54 262641.7062.60
5.555.75 272743.3065.00
5.765.96 282844.9067.40
5.976.18 292946.5069.80
6.196.39 303048.1072.20
6.406.60 313149.7074.60
6.616.82 323251.3077.00
6.837.03 333352.9079.40
7.047.24 343454.5081.80
7.257.46 353556.1084.20
7.477.67 363657.7086.60
7.687.88 373759.3089.00
7.898.10 383860.9091.40
8.118.31 393962.6093.90
8.328.52 404064.2096.30
8.538.73 414165.8098.70
8.748.95 424267.40101.10
8.969.16 434369.00103.50
9.179.37 444470.60105.90
9.389.59 454572.20108.30
9.609.80 464673.80110.70
9.8110.01 474775.40113.10
10.0210.23 484877.00115.50
10.2410.44 494978.60117.90
10.4510.65 505080.20120.30
10.6610.87 515181.80122.70
10.8811.08 525283.40125.10
11.0911.29 535385.00127.50
11.3011.51 545486.60129.90
11.5211.72 555588.20132.30
11.7311.93 565689.80134.70
11.9412.15 575791.40137.10
12.1612.36 585893.00139.50
12.3712.57 595994.60141.90
12.5812.78 606096.20144.30
12.7913.00 616197.80146.70
13.0113.21 626299.40149.10
13.2213.42 6363101.00151.50
13.4313.64 6464102.60153.90
13.6513.85 6565104.20156.30
13.8614.06 6666105.80158.70
14.0714.28 6767107.40161.10
14.2914.49 6868109.00163.50
14.5014.70 6969110.60165.90
14.7114.92 7070112.20168.30
14.9315.13 7171113.80170.70
15.1415.34 7272115.40173.10
15.3515.56 7373117.00175.50
15.5715.77 7474118.60177.90
15.7815.98 7575120.20180.30
15.9916.20 7676121.80182.70

Table of Benefits in Effect in December 1978

[In dollars]

I. Primary insurance benefit: If an individual’s primary insurance benefit (as determined under § 404.241(e)) is –
II. Primary insurance amount effective June 1977: Or his or her primary insurance amount is –
III. Average monthly wage: Or his or her average monthly wage (as determined under § 404.221) is –
IV. Primary insurance amount effective June 1978: Then his or her primary insurance amount is –
V. Maximum family benefits: And the maximum amount of benefits payable on the basis of his or her wages and self-employment income is –
At least –
But not more than –
At least –
But not more than –
16.20114.30 76121.80182.70
16.2116.84116.107778123.70185.60
16.8517.60118.807980126.60189.90
17.6118.40121.008181128.90193.50
18.4119.24123.008283131.20196.80
19.2520.00125.808485134.00201.00
20.0120.64128.108687136.50204.80
20.6521.28130.108889138.60207.90
21.2921.88132.709090141.40212.10
21.8922.28135.009192143.80215.70
22.2922.68137.209394146.20219.20
22.5923.08139.409596148.50222.80
23.0923.44142.009797151.30227.00
23.4523.76144.309899153.70230.60
23.7724.20147.10100101156.70235.10
24.2124.60149.20102102158.90238.50
24.6125.00151.70103104161.60242.40
25.0125.48154.50105106164.60246.90
25.4925.92157.00107107167.30251.00
25.9326.40159.40108109169.80254.80
26.4126.94161.90110113172.50258.80
26.9527.46164.20114118174.90262.40
27.4728.00166.70119122177.60266.50
28.0128.68169.30123127180.40270.60
28.6929.25171.80128132183.00274.60
29.2629.68174.10133136185.50278.30
29.6930.36176.50137141188.00282.10
30.3730.92179.10142146190.80286.20
30.9331.36181.70147150193.60290.40
31.3732.00183.90151155195.90293.90
32.0132.60186.50156160198.70298.10
32.6133.20189.00161164201.30302.00
33.2133.88191.40165169203.90305.90
33.8934.50194.00170174206.70310.10
34.5135.00196.30175178209.10313.70
35.0135.80198.90179183211.90318.00
35.8136.40201.30184188214.40321.70
36.4137.08203.90189193217.20326.00
37.0937.60206.40194197219.90329.90
37.6138.20208.80198202222.40333.60
38.2139.12211.50203207225.30338.00
39.1339.68214.00208211228.00342.00
39.6940.33216.00212216230.10345.20
40.3441.12218.70217221233.00349.50
41.1341.76221.20222225235.60353.40
41.7742.44223.90226230238.50357.80
42.4543.20226.30231235241.10361.70
43.2143.76229.10236239244.00366.10
43.7744.44231.20240244246.30371.10
44.4544.88233.50245249248.70378.80
44.8945.60236.40250253251.80384.90
238.70254258254.30392.50
240.80259263256.50400.00
243.70264267259.60206.00
246.10268272262.10413.70
248.70273277264.90421.20
251.00278281267.40427.20
253.50282286270.00434.90
256.20287291272.90442.60
258.30292295275.10448.50
261.10296300278.10456.10
263.50301305280.70463.80
265.80306309283.10469.80
268.50310314286.00477.40
270.70315319288.30485.10
273.20320323291.00491.10
275.80324328293.80498.70
278.10329333296.20506.20
281.00334337299.30512.50
283.00338342301.40519.90
285.60343347304.20527.50
288.30348351307.10533.60
290.50352356309.40541.20
293.30357361312.40548.80
295.60362365314.90554.90
297.90366370317.30562.50
300.60371375320.20569.90
303.10376379322.90576.30
305.70380384325.60583.90
307.90385389328.00591.30
310.30390393330.50597.40
313.00394398333.40605.10
315.40399403336.00612.70
318.20404407338.90618.60
320.20408412341.10626.30
322.50413417343.50633.80
324.80418421346.00639.90
327.40422426348.70647.50
329.60427431351.10655.10
331.60432436353.20662.70
334.40437440356.20665.70
336.50441445358.40669.70
338.70446450360.80673.40
341.30451454363.50676.30
343.50455459365.90680.10
345.80460464368.30683.80
347.90465468370.60687.10
350.70469473373.50690.80
352.60474478375.60694.60
354.90479482378.00697.70
357.40483487380.70701.60
359.70488492383.10705.40
361.90493496385.50708.40
364.50497501388.20712.10
366.60502506390.50715.80
368.90507510392.90719.00
371.10511515395.30722.80
373.70516520398.00726.70
375.80521524400.30729.50
378.10525529402.70733.40
380.80530534405.60737.10
382.80535538407.70740.20
385.10539543410.20744.10
387.60544548412.80747.80
389.90549553415.30751.60
392.10554556417.60753.90
393.90557560419.60756.90
396.10561563421.90759.30
398.20564567424.10762.30
400.40568570426.50764.50
402.30571574428.50767.50
404.40575577430.70769.90
406.20578581432.70772.80
408.40582584435.00775.20
410.20585588436.90778.20
412.60589591439.50780.50
414.60592595441.60783.50
416.70596598443.80785.60
418.70599602446.00788.90
420.70603605448.10791.10
422.80606609450.30794.00
424.90610612452.60796.50
426.90613616454.70799.50
428.90617620456.80802.50
431.00621623459.10804.80
433.00624627461.20807.90
435.10628630463.40810.70
437.10631634465.60814.70
439.20635637467.80818.50
441.40638641470.10822.40
443.20642644472.10826.10
445.40645648474.40830.10
447.40649652476.50833.70
448.60653656477.80836.10
449.90657660479.20838.40
451.50661665480.90841.50
453.10666670482.60844.50
454.80671675484.40847.40
456.40676680486.10850.50
458.00681685487.80853.50
459.80686690489.70856.40
461.20691695491.20859.60
462.80696700492.90862.60
464.50701705494.70865.60
466.10706710496.40868.60
467.70711715498.20871.50
469.40716720500.00874.60
471.00721725501.70877.60
472.60726730503.40880.70
474.20731735505.10883.80
475.90736740506.90886.70
477.40741745508.50889.90
478.90746750510.10892.70
480.40751755511.70896.40
481.80756760513.20897.80
483.20761765514.70900.40
484.50766770516.00903.00
485.80771775517.40905.40
487.20776780518.90907.90
488.60781785520.40910.40
489.80786790521.70912.90
491.10791795523.10915.40
492.50796800524.60918.00
494.00801805526.20920.50
495.30806810527.50923.00
496.70811815529.00925.60
498.00816820530.40928.00
499.40821825531.90930.60
500.70826830533.30933.10
502.00831835534.70935.70
503.30836840536.10938.10
504.70841845537.60940.80
506.00846850538.90943.00
507.50851855540.50945.70
508.80856860541.90948.10
510.20