[Federal Register Volume 76, Number 49 (Monday, March 14, 2011)]
[Rules and Regulations]
[Pages 13506-13508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5750]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA-2011-0008]
RIN 0960-AH29


Protecting the Public and Our Employees in Our Hearing Process

AGENCY: Social Security Administration.

ACTION: Interim final rules with request for comments.

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SUMMARY: We are clarifying our regulatory procedures to ensure the 
safety of the public and our employees in our hearing process. Due to 
increasing reports of threats to our hearing office employees, we are 
taking steps to explicitly increase the level of protection we provide 
to our staff and to the public during the hearing process. We expect 
these changes to result in a safer work environment for our employees, 
while at the same time ensuring that our claimants continue to receive 
a full and fair hearing on their claims for benefits.

DATES: Effective Date: This final rule is effective March 14, 2011.
    Comment date: To ensure that your comments are considered, we must 
receive them no later than May 13, 2011.

ADDRESSES: You may submit comments by any one of three methods--
Internet, fax, or mail. Do not submit the same comments multiple times 
or by more than one method. Regardless of which method you choose, 
please state that your comments refer to Docket No. SSA-2011-0008 so 
that we may associate your comments with the correct regulation.

    Caution: You should be careful to include in your comments only 
information that you wish to make publicly available. We strongly 
urge you not to include in your comments any personal information, 
such as SSN or medical information.

    1. Internet: We strongly recommend that you submit your comments 
via the Internet. Please visit the Federal eRulemaking portal at http://www.regulations.gov. Use the Search function to find docket number 
SSA-2011-0008. The system will issue a tracking number to confirm your 
submission. You will not be able to view your comment immediately 
because we must post each comment manually. It may take up to a week 
for your comment to be viewable.
    2. Fax: Fax comments to (410) 966-2830.
    3. Mail: Mail your comments to the Office of Regulations, Social 
Security Administration, 107 Altmeyer Building, 6401 Security 
Boulevard, Baltimore, Maryland 21235-6401.
    Comments are available for public viewing on the Federal 
eRulemaking portal at http://www.regulations.gov or in person, during 
regular business hours, by arranging with the contact person identified 
below.

FOR FURTHER INFORMATION CONTACT: Glen Colvin, Social Security 
Administration, 5107 Leesburg Pike, Falls Church, VA 22041-3260, 703-
605-8444, for information about this final rule. For information on 
eligibility or filing for benefits, call our national toll-free number, 
1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, 
Social Security Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION:

Background

    We touch the lives of virtually every American, often during times 
of personal hardship, transition, and uncertainty. In FY2010, we had 45 
million visits to our field offices, 738,000 hearings before an 
administrative law judge (ALJ), and over 67 million calls to our 800 
number. Most interactions occur without incident, and 90% of visitors 
responding to our annual surveys rated the service as excellent, very 
good or good. However, some people who visit or call our offices make 
inappropriate statements to and against our employees. Unfortunately, 
some people go beyond verbal threats and physically assault our 
employees and guards. As our workloads have risen in recent years, the 
number of reported threats to our employees has increased 
significantly. In FY2010, we received 2,777 reports of threats to our 
employees across all offices, an increase of 43% from FY2009. We take 
these incidents very seriously, and we promptly investigate them and 
refer them to law enforcement for further action, when appropriate. We 
have increased security measures in our field and hearing offices and 
are using the resources provided by Congress to handle benefit claims 
more quickly and accurately. We expect these actions will minimize the 
anxiety that claimants may experience when they seek disability 
benefits from us. In deciding what further actions we should take, we 
must balance the risks to the public and our employees against our 
service delivery obligations.
    We are addressing concerns about security agency-wide, and many of 
the actions we are taking do not require regulatory changes. However, 
some of the actions we need to take require us to change the 
regulations that govern our hearing process.

Explanation of Changes

    Agencies have the inherent authority to enforce reasonable 
restrictions on access to Federally owned property. In addition, courts 
have held that an individual's right of access to Federal property can 
reasonably be limited in the interest of public safety.\1\ In 
developing these final rules, we are balancing the individual's right 
to obtain services against the threat that the individual poses to the 
safety of our employees and our visitors.
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    \1\ See Downing v. Kunzig, 454 F.2d 1230, 1232 (6th Cir. 1972) 
(noting that, ``federal buildings housing federal courts and other 
governmental agencies are designed to be used strictly for 
governmental purposes. Although members of the public ordinarily 
have free access to such buildings, * * * responsible agencies are 
free to adopt and enforce reasonable rules restricting such public 
use. * * *''); cf. United States v. Cassiagnol, 420 F.2d 868, 875 
(4th Cir. 1970) (``Even where government property is generally open 
to the public, reasonable nondiscriminatory regulation is 
appropriate to prevent interference with the designated and intended 
governmental use thereof.'')
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    In these final rules, we describe the process we will follow when 
one of our hearing office employees requests that we provide additional 
security at a hearing because the claimant or another individual poses 
a threat to the safety of our employees or other participants in the 
hearing. When one of our employees makes such a request, the Hearing 
Office Chief Administrative Law Judge (HOCALJ) will determine whether 
the individual poses a reasonable threat to the safety of our employees 
or other participants in the hearing. The HOCALJ will make this finding 
when he or she determines that the individual has made a threat and 
there is a reasonable likelihood that the claimant or other individual 
could act on the threat. The threats that we will consider under these 
procedures would include, but are not limited to, a declaration of 
intent to injure another person, or deface or destroy property by some 
unlawful act. For example, we would use the procedures in these rules 
when a claimant or other individual makes a threat of physical harm or 
death against the ALJ, the ALJ's family, Social Security employees, the 
claimant's

[[Page 13507]]

representative, the witnesses at a hearing, the disability 
determination services, or the security staff in the hearing office.
    The HOCALJ will determine whether the individual poses a reasonable 
threat to the safety of our employees or other participants in the 
hearing based on the available evidence and after consultation with the 
presiding ALJ. Based on the HOCALJ's finding, we will take the 
necessary steps to protect the public and our employees. In making this 
finding, the HOCALJ will consider the evidence in the claimant's record 
and any other information we have regarding the claimant's or other 
individual's past conduct. If the HOCALJ determines that the individual 
poses a reasonable threat to the safety of our employees or other 
participants in the hearing, we will either require the presence of a 
guard at the hearing or require that the claimant's hearing be held by 
video or telephone. We expect to exercise this authority infrequently; 
the vast majority of hearings will continue to be conducted under our 
standard procedures.
    In some cases, because of the claimant's past actions, we will have 
banned him or her from our facilities. If we have banned a claimant 
from any of our facilities, he or she will be provided with the 
opportunity for a telephone hearing, at which he or she may testify and 
question any witnesses. While the Social Security Act provides a 
claimant with the opportunity for a hearing, we believe that, under 
these extraordinary circumstances, the opportunity for a telephone 
hearing fulfills this mandate.
    The HOCALJ's findings as to whether or not an individual poses a 
reasonable threat and how we will conduct the hearing are not initial 
determinations and not subject to further review under 20 CFR 404.903 
and 416.1403.

Clarity of These Rules

    Executive Order 12866 as supplemented by Executive Order 13563 
requires each agency to write all rules in plain language. In addition 
to your substantive comments on this final rule, we invite your 
comments on how to make rules easier to understand.
    For example:
    <bullet> Would more, but shorter, sections be better?
    <bullet> Are the requirements in the rule clearly stated?
    <bullet> Have we organized the material to suit your needs?
    <bullet> Could we improve clarity by adding tables, lists, or 
diagrams?
    <bullet> What else could we do to make the rule easier to 
understand?
    <bullet> Does the rule contain technical language or jargon that is 
not clear?
    <bullet> Would a different format make the rule easier to 
understand, e.g., grouping and order of sections, use of headings, 
paragraphing?

When will we start to use this rule?

    We will start to use this final rule on the date shown under the 
``Effective Date'' section earlier in this preamble. However, we are 
also inviting public comments on the changes made by this rule. We will 
consider any relevant comments we receive, and plan to publish another 
final rule document to respond to any such comments we receive, and to 
make any changes to the rules as appropriate based on the comments.

Regulatory Procedures

Justification for Issuing Final Rule Without Notice and Comment

    We follow the Administrative Procedure Act (APA) rulemaking 
procedures specified in 5 U.S.C. 553 when developing regulations. 
Section 702(a)(5) of the Social Security Act, 42 U.S.C. 902(a)(5). 
Generally, the APA requires that an agency provide prior notice and 
opportunity for public comment before issuing a final rule. The APA 
provides exceptions to its notice and public comment procedures when an 
agency finds there is good cause for dispensing with such procedures 
because they are impracticable, unnecessary, or contrary to the public 
interest. We have determined that good cause exists for dispensing with 
the notice and public comment procedures for this rule. 5 U.S.C. 
553(b)(B).
    As we noted above, the number of reported threats to our employees 
and property has risen dramatically in recent years. In light of this 
increase, we believe we must take immediate action in order to 
implement this rule as quickly as possible. The changes we are making 
in these final rules will increase our ability to protect our 
claimants, employees, and other visitors to our hearing offices, while 
at the same time ensuring that claimants are provided with the 
opportunity for a full and fair hearing. Accordingly, we find that 
prior public comment would be contrary to the public interest. However, 
we are inviting public comment on these final rules and will consider 
any substantive comments we receive within 60 days of the publication 
of these final rules.
    In addition, for the reasons cited above, we also find good cause 
for dispensing with the 30-day delay in the effective date of this rule 
provided for in 5 U.S.C. 553(d)(3). For the reasons stated above, we 
find it contrary to the public interest to delay the effective date of 
the changes we are making in this final rule. Accordingly, we are 
making this final rule effective upon publication.

Executive Order 12866 as Supplemented by Executive Order 13563

    We consulted with the Office of Management and Budget (OMB) and 
determined that this interim final rule meets the criteria for a 
significant regulatory action under Executive Order 12866 as 
supplemented by Executive Order 13563. Thus, OMB reviewed the final 
rule.

Regulatory Flexibility Act

    We certify that this final rule will not have a significant 
economic impact on a substantial number of small entities as it affects 
individuals only. Therefore, a regulatory flexibility analysis is not 
required under the Regulatory Flexibility Act, as amended.

Paperwork Reduction Act

    This rule does not create any new or affect any existing 
collections and, therefore, does not require OMB approval under the 
Paperwork Reduction Act.

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social 
Security--Disability Insurance; 96.002, Social Security--Retirement 
Insurance; 96.004, Social Security--Survivors Insurance; 96.006, 
Supplemental Security Income.)

List of Subjects

20 CFR Part 404

    Administrative practice and procedure; Blind, disability benefits; 
Old-age, Survivors and disability insurance; Reporting and 
recordkeeping requirements; Social security.

20 CFR Part 416

    Administrative practice and procedure; Reporting and recordkeeping 
requirements; Supplemental Security Income (SSI).

    Dated: March 8, 2011.
Michael J. Astrue,
Commissioner of Social Security.
    For the reasons stated in the preamble, we are amending subpart J 
of part 404 and subpart N of part 416 of title 20 of the Code of 
Federal Regulations as set forth below:

[[Page 13508]]

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

Subpart J--[Amended].

0
1. The authority citation for subpart J of part 404 continues to read 
as follows:

    Authority: Secs. 201(j), 204(f), 205(a), (b), (d)-(h), and (j), 
221, 223(i), 225, and 702(a)(5) of the Social Security Act (42 
U.S.C. 401(j), 404(f), 405(a), (b), (d)-(h), and (j), 421, 423(i), 
425, and 902(a)(5)); sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42 
U.S.C. 405 note); secs. 5, 6(c)-(e), and 15, Pub. L. 98-460, 98 
Stat. 1802 (42 U.S.C. 421 note); sec. 202, Pub. L. 108-203, 118 
Stat. 509 (42 U.S.C. 902 note).


0
2. Add Sec.  404.937 to read as follows:


Sec.  404.937  Protecting the safety of the public and our employees in 
our hearing process.

    (a) Notwithstanding any other provision in this part or part 422 of 
this chapter, we are establishing the procedures set out in this 
section to ensure the safety of the public and our employees in our 
hearing process.
    (b)(1) At the request of any hearing office employee, the Hearing 
Office Chief Administrative Law Judge will determine, after 
consultation with the presiding administrative law judge, whether a 
claimant or other individual poses a reasonable threat to the safety of 
our employees or other participants in the hearing. The Hearing Office 
Chief Administrative Law Judge will find that a claimant or other 
individual poses a reasonable threat to the safety of our employees or 
other participants in the hearing when he or she determines that the 
individual has made a threat and there is a reasonable likelihood that 
the claimant or other individual could act on the threat. In making a 
finding under this paragraph, the Hearing Office Chief Administrative 
Law Judge will consider all relevant evidence, including any 
information we have in the claimant's record and any information we 
have regarding the claimant's or other individual's past conduct.
    (2) If the Hearing Office Chief Administrative Law Judge determines 
that the claimant or other individual poses a reasonable threat to the 
safety of our employees or other participants in the hearing, the 
Hearing Office Chief Administrative Law Judge will either:
    (i) Require the presence of a security guard at the hearing; or
    (ii) Require that the hearing be conducted by video teleconference 
or by telephone.
    (c) If we have banned a claimant from any of our facilities, we 
will provide the claimant with the opportunity for a hearing that will 
be conducted by telephone.
    (d) The actions of the Hearing Office Chief Administrative Law 
Judge taken under this section are final and not subject to further 
review.

PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND 
DISABLED

Subpart N--[Amended].

0
3. The authority citation for subpart N continues to read as follows:

    Authority: Secs. 702(a)(5), 1631, and 1633 of the Social 
Security Act (42 U.S.C. 902(a)(5), 1383, and 1383b); sec. 202, Pub. 
L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).

0
4. Add Sec.  416.1437 to read as follows:


Sec.  416.1437  Protecting the safety of the public and our employees 
in our hearing process.

    (a) Notwithstanding any other provision in this part or part 422 of 
this chapter, we are establishing the procedures set out in this 
section to ensure the safety of the public and our employees in our 
hearing process.
    (b)(1) At the request of any hearing office employee, the Hearing 
Office Chief Administrative Law Judge will determine, after 
consultation with the presiding administrative law judge, whether a 
claimant or other individual poses a reasonable threat to the safety of 
our employees or other participants in the hearing. The Hearing Office 
Chief Administrative Law Judge will find that a claimant or other 
individual poses a reasonable threat to the safety of our employees or 
other participants in the hearing when he or she determines that the 
individual has made a threat and there is a reasonable likelihood that 
the claimant or other individual could act on the threat. In making a 
finding under this paragraph, the Hearing Office Chief Administrative 
Law Judge will consider all relevant evidence, including any 
information we have in the claimant's record and any information we 
have regarding the claimant's or other individual's past conduct.
    (2) If the Hearing Office Chief Administrative Law Judge determines 
that the claimant or other individual poses a reasonable threat to the 
safety of our employees or other participants in the hearing, the 
Hearing Office Chief Administrative Law Judge will either:
    (i) Require the presence of a security guard at the hearing; or
    (ii) Require that the hearing be conducted by video teleconference 
or by telephone.
    (c) If we have banned a claimant from any of our facilities, we 
will provide the claimant with the opportunity for a hearing that will 
be conducted by telephone.
    (d) The actions of the Hearing Office Chief Administrative Law 
Judge taken under this section are final and not subject to further 
review.

[FR Doc. 2011-5750 Filed 3-11-11; 8:45 am]
BILLING CODE 4191-02-P