Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Notices 70939

Representative (CCR), and must be filed

no later than (30 days from publication).

This procedure is to be conducted

simultaneously with and independent

of the procedures described in 21 CFR

1301.34(b), (c), (d), (e), and (f). As noted

in a previous notice at 40 FR 43745–46

(September 23, 1975), all applicants for

registration to import the basic classes

of any controlled substances in

Schedule I or II are and will continue to

be required to demonstrate to the

Deputy Assistant Administrator, Office

of Diversion Control, Drug Enforcement

Administration that the requirements

for such registration pursuant to 21

U.S.C. 958(a), 21 U.S.C. 823(a), and 21

CFR 1301.34(a), (b), (c), (d), (e), and (f)

are satisfied.

Dated: November 6, 2000.

John H. King,

Deputy Assistant Administrator, Office of

Diversion Control, Drug Enforcement

Administration.

[FR Doc. 00–30292 Filed 11–27–00; 8:45 am]

BILLING CODE 4410–09–M

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

Importer of Controlled Substances;

Notice of Registration

By Notice dated September 6, 2000,

and published in the Federal Register

on September 25, 2000 (65 FR 57623),

Roche Diagnostics Corporation, 9115

Hague Road, Indianapolis, Indiana

46250, made application by letter to the

Drug Enforcement Administration

(DEA) to be registered as an importer of

alphamethadol (9605), a basic class of

controlled substance listed in Schedule

I.

The firm plans to import the

alphamethadol to manufacture

diagnostic products for distribution to

its customers.

No comments or objections have been

received. DEA has considered the

factors in title 21, United States Code,

Section 823(a) and determined that the

registration of Roche Diagnostics

Corporation to import alphamethadol is

consistent with the public interest and

with United States obligations under

international treaties, conventions, or

protocols in effect on May 1, 1971, at

this time. DEA has investigated Roche

Diagnostics Corporation on a regular

basis to ensure that the company’s

continued registration is consistent with

the public interest. These investigations

have included inspection and testing of

the company’s physical security

systems, audits of the company’s

records, verification of the company’s

compliance with state and local laws,

and a review of the company’s

background and history. Therefore,

pursuant to section 1008(a) of the

Controlled Substances Import and

Export Act and in accordance with title

21, Code of Federal Regulations, section

1301.34, the above firm is granted

registration as an exporter of the basic

class of controlled substance listed

above.

Dated: November 8, 2000.

John H. King,

Deputy Assistant Administrator, Office of

Diversion Control, Drug Enforcement

Administration.

[FR Doc. 00–30296 Filed 11–27–00; 8:45 am]

BILLING CODE 4410–09–M

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

Importation of Controlled Substances;

Notice of Application

Pursuant to section 1008 of the

Controlled Substances Import and

Export Act (21 U.S.C. 958(I)), the

Attorney General shall, prior to issuing

a registration under this Section to a

bulk manufacturer of a controlled

substance in Schedule I or II and prior

to issuing a regulation under section

1002(a) authorizing the importation of

such a substance, provide

manufacturers holding registrations for

the bulk manufacture of the substance

an opportunity for a hearing.

Therefore, in accordance with section

1301.34 of Title 21, Code of Federal

Regulations (CFR), notice is hereby

given that on August 3, 2000, WestWard Pharmaceutical Corporation, 465

Industrial Way West, Eatontown, New

Jersey 07724, made application to the

Drug Enforcement Administration to be

registered as an importer of

dextropropoxyphene (9273), a basic

class of controlled substance listed in

Schedule II.

The firm plans to import

destropropoxyphene for the

manufacture of controlled and

noncontrolled products.

Any manufacturer holding, or

applying for, registration as a bulk

manufacturer of this basic class of

controlled substance may file written

comments on or objections to the

application described above and may, at

the same time, file a written request for

a hearing on such application in

accordance with 21 CFR 1301.43 in

such form as prescribed by 21 CFR

1316.47.

Any such comments, objections or

requests for a hearing may be addressed,

in quintuplicate, to the Deputy Assistant

Administrator, Office of Diversion

Control, Drug Enforcement

Administration, United States

Department of Justice, Washington, DC

20537, Attention: DEA Federal Register

Representative (CCR), and must be filed

no later than (30 days from publication).

This procedure is to be conducted

simultaneously with and independent

of the procedures described in 21 CFR

1301.34(b), (c), (d), (e), and (f). As noted

in a previous notice at 40 FR 43745–

43746, September 23, 1975, all

applicants for registration to import a

basic class of any controlled substance

in Schedule I or II are and will continue

to be required to demonstrate to the

Deputy Assistant Administrator, Office

of Diversion Control, Drug Enforcement

Administration that the requirements

for such registration pursuant to 21

U.S.C. 958(a), 21 U.S.C. 823(a), and 21

CFR 1301.34(a), (b), (c), (d), (e), and (f)

are satisfied.

Dated: November 6, 2000.

John H. King,

Deputy Assistant Administrator, Office of

Diversion Control, Drug Enforcement

Administration.

[FR Doc. 00–30293 Filed 11–27–00; 8:45 am]

BILLING CODE 4410–09–M

DEPARTMENT OF LABOR

Employment and Training

Administration

Federal-State Unemployment

Compensation Program:

Unemployment Insurance Program

Letter Interpreting Federal

Unemployment Insurance Law

The Employment and Training

Administration interprets Federal law

requirements pertaining to

unemployment compensation (UC) as

part of its role in the administration of

the Federal-State UC program. These

interpretations are issued in

Unemployment Insurance Program

Letters (UIPLs) to the State Employment

Security Agencies. The UIPL described

below is published in the Federal

Register in order to inform the public.

UIPL 04–01

UIPL 04–01 reminds State

Employment Security Agencies of the

Department of Labor’s interpretation of

the ‘‘payment when due’’ requirement

of Section 303(a)(1) of the Social

Security Act as applied during a

continued claim series. It also provides

clarification concerning this

interpretation.

70940 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Notices

Dated: November 20, 2000.

Raymond Bramucci,

Assistant Secretary of Labor.

U.S. Department of Labor, Employment and

Training Administration, Washington, D.C.

20210

Classification: UI

Correspondence Symbol: TEUL

Date: October 27, 2000

Directive: Unemployment Insurance Program

Letter No. 04–01

To: All State Employment Security Agencies

From: Grace A. Kilbane, Administrator,

Office of Workforce Security

Subject: Payment of Compensation and

Timeliness of Determinations during a

Continued Claims Series

1. Purpose. To remind States of the

Department of Labor’s (Department’s)

interpretation of the ‘‘payment when due’’

requirement of Section 303(a)(1) of the Social

Security Act (SSA), as applied during a

continued claim series, and to provide

clarification concerning this interpretation.

2. References. Section 303(a)(1), SSA;

California Department of Human Resources

Development v. Java, 402 U.S. 121 (1971);

Fusari v. Steinberg, 419 U.S. 379 (1975);

Pennington v. Didrickson, 22 F.3d 1376 (7th

Cir. 1994); 20 CFR Parts 602 and 640;

Unemployment Insurance Program Letter

(UIPL) No. 1145 (Procedures for

Implementation of the Java Decision); UIPL

No. 34–85 (Voluntary Waiver of Benefit

Rights by a Claimant Pending the Outcome

of an Employer Initiated Appeal); ETA

Handbook No. 365 (Unemployment

Insurance Quality Appraisal (no longer in

effect)); ET Handbook No. 301 (UI Performs:

Benefit Timeliness and Quality (BTQ):

Nonmonetary Determinations Quality

Review); ET Handbook No. 401

(Unemployment Insurance Reports).

3. Background. While conducting training

for States on the new process for reviewing

the quality of nonmonetary determinations,

the Department became aware that, during a

continued claim series, some States may not

properly administer the requirements of

Section 303(a)(1), SSA, concerning payment

of unemployment compensation (UC) ‘‘when

due.’’ The Department has three specific

concerns.

First, some States may fail to pay benefits

to claimants for weeks in which no eligibility

issue exists when a determination of

eligibility for a previous week is pending.

Second, the Department has observed an

inconsistency among States in the starting

date used to calculate timeliness of

determinations during a continued claim

series, a date that should be uniformly

applied.

Third, the Department has found that,

during a continued claim series, some States

improperly withhold benefits from claimants

when the State does not make a

determination of continued eligibility in a

timely fashion.

The Department is issuing this UIPL in

order to address these concerns. It clarifies

UIPL No. 1145, issued in 1971 but still in

effect, with respect to the date to be used for

calculating timeliness of determinations

during a continued claim series, and clarifies

when payment may not be withheld during

a continued claim series.

4. Section 303(a)(1), SSA—‘‘Full Payment

.... When Due.’’ Section 303(a)(1), SSA,

requires States, as a condition of receiving

Federal UC administration grants, to provide

in their laws for ‘‘[s]uch methods of

administration . . . as are found by the

Secretary of Labor to be reasonably

calculated to insure full payment of

unemployment compensation when due.’’ In

the 1971 decision, California Department of

Human Resources Development v. Java, the

Supreme Court interpreted ‘‘when due’’ in

Section 303(a)(1), SSA, to mean ‘‘at the

earliest stage of unemployment that such

payments [are] administratively feasible after

giving both the worker and the employer an

opportunity to be heard.’’ Although the

specific holding in Java required the State to

pay benefits to claimants initially determined

eligible pending an employer appeal, the

Court’s reasoning was broader, requiring

promptness at all stages of the eligibility

determination and payment processes. See

UIPL No. 1145, Attachment, page 1; Fusari v.

Steinberg, 419 U.S. 379, 387–388 n.15 (1975);

and Pennington v. Didrickson, 22 F.3d 1376,

1386 (7th Cir. 1994) (quoting Jenkins v.

Bowling, 691 F.2d 1225 (7th Cir. 1982)). The

Department has issued regulations

interpreting the promptness requirement of

Section 303(a)(1), SSA, to require payment of

UC to eligible claimants, and the making of

determinations, ‘‘with the greatest

promptness that is administratively feasible.’’

20 CFR 640.3(a). In addition, in the

attachment to UIPL No. 1145, the Department

interpreted the promptness requirement of

Section 303(a)(1), SSA, to require prompt

determinations on individual claims. See

pages 8 & 14, UIPL No. 1145, Attachment.

As well as promptness, the Department has

always interpreted ‘‘when due’’ in Section

303(a)(1), SSA, to require accuracy in order

to ensure that payments are not made when

they are not due. See 20 CFR 602.11(a) and

602.21(c). Proper application of Section

303(a)(1) requires an appropriate balancing of

the dual concerns of promptness and

accuracy in the ‘‘when due’’ provision.

5. The Need for Payment Without Delay to

Claimants in Weeks for which They Are

Eligible During a Continued Claim Series. As

stated, a fundamental aspect of payment

‘‘when due,’’ for purposes of Section

303(a)(1), SSA, is that UC is due to claimants

who are eligible under State law. Eligibility

for UC is determined on a week-by-week

basis. During a continued claim series, a

claimant must certify as to continuing

eligibility for each week. If information

provided by the claimant or others

establishes eligibility, the State agency

manifests its determination of eligibility for

that week by issuing compensation to the

claimant. When a question concerning

continued eligibility for benefits for a given

week arises, the State agency conducts an

investigation of the facts and makes a

determination of eligibility or ineligibility.

While such a determination is pending, the

State agency need not issue payment for the

week in question until it issues a

determination regarding eligibility, provided

the determination is timely. Sometimes the

question of eligibility affects future weeks. In

such circumstances, not issuing payment for

these later weeks because of the earlier

eligibility issue is acceptable until a timely

determination is made.

When the question of eligibility does not

affect later weeks, however, States must make

payment for the later weeks without delay. In

other words, States may not withhold

payment for later weeks in which no

eligibility issue exists consistent with Section

303(a)(1), SSA’s requirement to pay benefits

‘‘when due.’’ The Department clearly

expressed this requirement on page 19 of the

Attachment to UIPL No. 1145, stating

‘‘[w]hen the question [of eligibility] relates to

eligibility or possible fraud for past weeks

only, benefits claimed for current weeks may

not be suspended while an investigation is

conducted [emphasis added].’’ This

requirement is still in force.

6. Timely Determinations in a Continued

Claim Series. The attachment to UIPL No.

1145 interpreted the ‘‘when due’’ provision

in Section 303(a)(1), SSA, and Java, to

require prompt resolution of eligibility issues

that arise during a continued claim series.

That Attachment stated that such

determinations would be considered to be

issued ‘‘on time’’ within the meaning of the

‘‘when due’’ requirement, as interpreted in

Java, if issued ‘‘no later than the end of the

week following the week in which [an] issue

arises [emphasis added].’’ Thus, the date on

which an issue ‘‘arises’’ is the critical date for

calculating timeliness.

The term ‘‘arises’’ has historically been

subject to different interpretations. Some

States have interpreted the ‘‘arises’’ date

literally to mean the date a claimant engaged

in potentially disqualifying behavior. Other

States have applied the interpretation found

in ET Handbook No. 365, Quality Appraisal,

in effect from 1992–1996, which says that

determinations during a continued claim

series are timely if ‘‘issued within 7 days

from the end of the week in which the issue

is detected’’ (in the case of intrastate claims)

or the State ‘‘received notification’’ of the

issue (in the case of interstate claims)

(emphases added). This approach interpreted

the ‘‘issue arises’’ date in UIPL No. 1145 to

mean the issue detection date. This

interpretation is followed in subsequent

handbooks, including ET Handbook No. 401,

the UI Reports Handbook, and Handbook

301, the BTQ NonMonetary Determination

Quality Review Handbook (see pages V–9

and V–10). Handbook 401 defines the issue

detection date as: ‘‘the earliest date that the

agency, including organizational units . . . ,

is in possession of information indicating the

existence of a nonmonetary issue’’ (see page

V–3–5).

Although UIPL No. 1145, Attachment, used

the term ‘‘arises,’’ taken in context, that term

means, as reflected in later handbooks, the

date an issue is detected by the State agency.

Interpreting the ‘‘issue arises’’ date in the

more literal manner followed by some States

(meaning the date of the potentially

disqualifying event) would necessarily

preclude timely determinations in many

cases. For example, if a claimant refused a

Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Notices 70941

1This does not imply, however, that Section

303(a)(1), SSA, sets no outside time limit on

individual determinations of initial claims.

job in week one and has until Thursday or

Friday of the following week to submit a

claim certification for week one, it may be

impossible for the agency to gather facts and

issue a decision by Friday of week two.

Requiring a determination to be made in that

manner is not reasonable, nor is it necessary

under Section 303(a)(1), SSA. Consequently,

States are to use the issue detection date as

the date from which to calculate timeliness

for purposes of Federal requirements.

7. Balancing Timeliness and Accuracy: the

Presumption of Continued Eligibility.

Although Section 303(a)(1), SSA, requires

timely determinations regarding eligibility

for individual claimants, States may, in some

cases, be unable to issue a determination in

a timely fashion. UIPL No. 1145 stated that

before a determination is made in a

continued claim series ‘‘benefits will not be

withheld’’ (emphasis added) (see UIPL No.

1145, Attachment, page 19). Over the years,

the Department has been asked about the

meaning of this statement, especially in

relation to the requirement of Section

303(a)(1), SSA, that payment not be made

when it is not due.

With this UIPL, the Department clarifies

this statement in UIPL No. 1145, Attachment,

concerning payment during a continued

claim series. Prior to the date for timely

determinations, a State is not required to pay

UC without a determination. However, when

the date for a timely determination has

passed in a continued claim series, the State

must either issue a determination of

ineligibility for UC (where the facts establish

ineligibility) or else pay UC immediately.

Payment would occur under a presumption

of continuing eligibility. The presumption

means that the State has made an initial

determination of eligibility and, based on

that initial determination and the absence of

facts clearly establishing current ineligibility,

the State agency presumes the claimant’s

continued eligibility until it makes a

determination otherwise. The presumption is

appropriate in a continued claim series

because a determination of initial eligibility

exists on which the presumption can be

based. The presumption may not be applied

on an initial claim.1The presumption

appropriately balances the timeliness and

accuracy concerns of Section 303(a)(1), SSA.

The presumption of continued eligibility is

an expedient for the State to facilitate timely

payments and may not be used as a substitute

for the State completing its determination

procedures. In order to avoid failing to

comply with Section 303(a)(1), SSA, by

paying benefits when they are not due, a

State using the presumption must issue a

determination as soon as administratively

feasible after payment is made to verify

whether the presumption was correct. In

arriving at such a determination the State

must follow the predetermination procedures

set forth in UIPL No. 1145.

The Department is aware that making

payments based on a presumption of

continuing eligibility may result in

overpayments. For that reason, States must

make timely determinations whenever

possible. A certain number of overpayments

resulting from application of the

presumption of continuing eligibility, when

the agency has been unable to issue a timely

determination, are inevitable.

In order to notify individuals of their rights

and obligations, a State must inform

claimants who receive payments under such

a presumption that a pending eligibility issue

may affect their entitlement and may result

in an overpayment. The State may also

advise claimants that they may want to defer

cashing the unemployment check until their

eligibility has been verified. This may help

to deter losses to the State’s fund and enable

the claimant to immediately repay any

overpayment. This procedure is consistent

with Departmental guidance in UIPL No. 34–

85, concerning the prohibition on voluntary

waiver of benefit rights by claimants, because

a determination has not yet been made.

8. Action Required. Administrators are to

provide this information to appropriate staff.

9. Inquiries. Inquiries should be directed to

the appropriate Regional Office.

10. Attachment. UIPL No. 1145.

In reply refer to: MUOC

U.S. Department of Labor, Manpower

Administration, Washington, D.C. 20210

November 12, 1971

Unemployment Insurance Program Letter No.

1145

To: All State Employment Security Agencies

Subject: Procedures for Implementation of

the Java Decision

At a nationwide series of meetings with

representatives of all State agencies in

August 1971, Manpower Administration staff

discussed draft procedural guides which

were proposed for implementation of the

requirements of the Supreme Court’s

decision in the Java case.

Under separate cover, we are sending to

each State agency five copies of the

procedures, revised in the light of the August

discussions.

UIPL No. 1126 advised that States should

issue as quickly as possible, but not later

than September 1, 1971, predetermination

procedures to provide for the necessary

notice and hearing opportunity to claimants

and employers. Later the States were

informed through the Regional Manpower

Administrators that any State that must have

the Java procedures prepared by the

Manpower Administration before it could

implement changes in its predetermination

procedures would have until two weeks after

receipt of the Java procedures to effectuate

the necessary changes in its procedures.

Accordingly, States that have not revised

their procedures should do so as soon as

possible, with an implementation date not

later than two weeks after receipt of the Java

procedures.

/s/ PAUL J. FASSER, JR., Deputy Assistant

Secretary for Manpower and Manpower

Administrator

Attachment to UIPL No. 1145

Procedures for Implementing The Java

Decision Requirements

Procedures for Implementing the Java

Decision’s Requirements

I. Introduction

The material contained in this statement

discusses the procedural implications of the

Java decision by the U. S. Supreme Court.

The Court’s opinion in this case was

primarily an explanation of the reasons for its

decision rather than an explanation of the

procedures to be followed in applying the

decision and its opinion. The reasoning of

the Court in support of its decision is,

however, broader in scope than the factual

situation in the specific case it was

considering. Other cases now pending in the

Federal Courts may reach the Supreme Court

and elicit from it more specific guidance as

to the procedures required in the

adjudication of unemployment benefit cases.

Pending such further guidance by the

Supreme Court, procedures implementing

the Java decision must nonetheless be

adopted even though it is recognized that

changes may later be necessary and that

experience may show that certain of the

procedural choices are more and others less

effective in meeting the requirements stated

by the Court and attaining the statutory

objectives which the Court described.

Unemployment Insurance Program Letter

No. 1126 states the Manpower

Administration’s view that to meet the

interpretation of section 303(a) (1) of the

Social Security Act, given by the Court in its

Java opinion, ‘‘a State’s law and procedure

must provide for:

1. Paying benefits promptly, after a

determination has been made in the

claimant’s favor, regardless of the pendency

of the appeal period or of any appeal that has

been taken from the determination; and

2. Providing reasonable notice to both the

claimant and employer of the time and place

of the pre-determination factfinding

hearing.’’

Promptness of Determination and Payment

In considering procedural steps to

implement the requirements stated by the

Court, the fullest weight must be given to the

emphasis the Court repeatedly placed on the

Congressional objective of achieving the

promptest payment of benefits that is

administratively possible.

‘‘The objective of Congress was to provide

a substitute for wages lost during a period of

unemployment not the fault of the employee.

Probably no program could be devised to

make insurance payments available precisely

on the nearest payday following the

termination, but to the extent that this was

administratively feasible this must be

regarded as what Congress was trying to

accomplish. The circumstances surrounding

the enactment of the statute confirm this.’’

(After citing the 1935 recommendations of

the Committee on Economic Security and its

staff’s estimates of possible amounts and

duration of unemployment benefits, the

Court continued.) ‘‘Other evidence in the

legislative history of the Act and the

commentary upon it supports the conclusion

that ‘when due’ was intended to mean at the

70942 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Notices

2See also UIPL No. 1136, July 19, 1971 ‘‘Draft

Language to Implement the Java Decision,’’

Explanatory Statement, Attachment No. 1, p. 2.

3This would be most appropriate, for example, in

cases involving difficult issues of fact or law and

multiple claimants. See UIPL No. 1126 and UIPL

No. 1136.

earliest stage of unemployment that such

payments were administratively feasible after

giving both the worker and the employer an

opportunity to be heard. The purpose of the

Act was to give prompt if only partial

replacement of wages to the unemployed, to

enable workers ‘to tide themselves over, until

they get back to their old work or find other

employment, without having to resort to

relief.’’’

‘‘Our reading of the statute imposes no

hardship on either the State or the employer

and gives effect to the congressional objective

of getting money into the pocket of the

unemployed worker at the earliest point that

is administratively feasible. That is what the

Unemployment Insurance program was all

about.’’

The Court’s stress on speeding benefit

payments to unemployed workers suggests

that this factor appropriately is the key

criterion to be used in choosing among

alternative procedures for implementing the

requirements stated in the decision. This

objective of prompt payment seems clearly,

in the Court’s view, to suffuse the entire

unemployment insurance program. The

Court said: ‘‘We conclude that the word ‘due’

in § 303(a)(1), when construed in light of the

purposes of the Act, means the time when

payments are first administratively allowed

as a result of a hearing of which both parties

have notice and are permitted to present their

respective positions; any other construction

would fail to meet the objective of early

substitute compensation during

unemployment.’’

Requirement of Benefit Payment During

Pendency of Appeals

Although the Court’s decision dealt

specifically only with the initial

determination of a worker’s eligibility made

at the time of the worker’s initiation of a

claim series, the reasoning of the Court

would lead to the conclusion that when

redeterminations or appeal decisions allow

benefits such benefits must be paid promptly

without delay or suspension because of the

pendency of an appeal or an appeal period.

It would follow also that determinations and

decisions that disqualify workers for benefits

for lesser periods than the State statute

would permit or for the maximum

disqualification period do not justify

withholding benefits for weeks following the

benefit denial period specified in the

disqualifying determination or decision. If

the individual is able to work and available

for work and otherwise meets requirements

for entitlement for such weeks, he should be

paid benefits for such weeks.

The Court did not pass on the effect of a

subsequent redetermination or appeal

decision reversing the initial determination

awarding benefits or modifying it adversely

to the claimant. Nor did it deal with the

adequacy of a subsequent determination,

based on a later and different issue, to deny

benefits to the claimant. In the case of an

appeal decision that reverses or modifies

adversely a determination that allowed

benefits, it seems clear that such a decision

stops the payment of benefits. The Court

recognized that appeal decisions involve de

novo considerations and, of course, the

parties to an appeal are given an opportunity

for a fair hearing. As to redeterminations

relating to the same issue and determinations

relating to new and later issues, even though

it is recognized that both categories are in

issue before the Federal courts, it seems

reasonable to assume that the same

predetermination process that is sufficient to

establish that benefits are ‘‘due’’ is sufficient

to establish that they are not ‘‘due.’’ The

procedural discussion in this document

proceeds on this assumption.2

Requirement of Notice and Opportunity to be

Heard

Most of the procedural discussion

contained in this document deals with the

predetermination hearing to which the Court

referred in its conclusion (i.e., ‘‘a hearing of

which both parties have notice and are

permitted to present their respective

positions’’). These particular procedures are

not required for conformity with the Court’s

interpretation of section 303(a)(1). They are

recommended as reasonable approaches

which meet the requirements of the statute

with due regard to the promptness of benefit

payments that the Court has stressed. But

they are not the only such approaches. The

Court left to the States the choice of

procedures to be used in predetermination

fact finding proceedings, so long as the

procedures provide to the parties reasonable

notice and opportunity to be heard and result

in the prompt payment of benefits.

The words ‘‘hearing’’ and ‘‘be heard’’ as

used by the Court in the Java opinion are

susceptible of more than one interpretation.

That the Court did not use ‘‘hearing’’ to

require a ‘‘due process’’ hearing, ‘‘fair’’

hearing or an ‘‘evidentiary’’ hearing would

seem clearly to follow from its careful

avoidance of the holding in Goldberg v. Kelly

(397 U. S. 254), which the Java appellees had

urged the Court to follow. In Goldberg v.

Kelly the Court’s majority had said that

although ‘‘statutory ‘fair hearing’ ’’ was not

required (p. 266), welfare payments to a

recipient who had initially been held eligible

could not be suspended without a

predetermination evidentiary hearing (p.

264). Instead, in Java the Court said

specifically that:

‘‘Although the eligibility interview is

informal and does not contemplate taking

evidence in the traditional judicial sense, it

has adversary characteristics and the

minimum obligation of an employer is to

inform the interviewer and the claimant of

any disqualifying factors. So informed, the

interviewer can direct the initial inquiry to

identifying a frivolous or dilatory contention

by either party.’’

Thus, although a State agency may choose,

and in some cases most appropriately, to

provide a conventional type of hearing such

as an ‘‘evidentiary,’’ ‘‘due process’’ or ‘‘fair’’

hearing before making a determination of an

unemployment benefit issue case, 3 it cannot

be said that this is the Court’s requirement.

The following points as to the character of

the predetermination factfinding proceeding

emerge from the Court’s opinion.

1. The Court equated ‘‘interview’’ and

‘‘hearing’’ (It (the preliminary interview) . . .

is an occasion when the claims of both the

employer and the employee can be heard

. . .) (402 U.S. 121, at p. 134)

2. The Court’s recitation of the details of

the California determination procedure early

in its decision (402 U.S. 121, at pp. 126–127)

notes carefully that, when the claim is filed,

‘‘the employer is asked to furnish, within 10

days, ‘any facts then known which may affect

the claimant’s eligibility for benefits’.’’

Subsequently the Court noted, if the

employer challenged eligibility, the

interviewer is required ‘‘to seek from any

source the facts required to make a prompt

and proper determination of eligibility.’’

‘‘This,’’ said the Court, ‘‘clearly contemplates

inquiry to the latest employer, among

others.’’ The Court then describes the

claimant as appearing for his interview and

being asked to answer questions, explain

inconsistencies and offer his version of the

facts. ‘‘The interviewer is instructed to make

telephone contact with other parties,

including the latest employer, at the time of

the interview, if possible . . . Interested

persons, including the employer, are allowed

to confirm, contradict, explain, or present

any relevant evidence.’’

3. The Court pointed out that a proceeding

conducted ‘‘informally’’ which does not

‘‘contemplate taking evidence in the

traditional judicial sense,’’ meets the

traditional ‘‘hearing’’ requirement. (402 U.S.

121, at p. 134)

4. The purpose of the proceeding is to

inquire into the claim and to obtain

information that supports or opposes the

claim.

5. The employer’s contribution to the

proceeding is to furnish information. His

‘‘minimum obligation . . . is to inform the

interviewer and the claimant of any

disqualifying factors.’’ The employer who

‘‘has notice of the time and place of the

preliminary interview’’ has a ‘‘responsibility

to present sufficient data to make clear his

objections to the claim for benefits and put

the interviewer in position to broaden the

inquiry if necessary.’’ The employer ‘‘who

fails to present any evidence . . . has in

effect defaulted . . .’’ (402 U.S. 121, at p.

134)

6. The inquiry is to be controlled by the

interviewer. The information elicited from

the employer and the claimant becomes the

basis for any necessary further inquiry to

develop additional information that is

required to make a determination. (402 U.S.

121, at p. 134)

Taking these enumerated aspects of the

Court’s use of the word ‘‘hearing’’ into

account, at least two views can reasonably be

taken of the Court’s meaning and intent that

are different from the conventional type of

hearing.

For purposes of convenience one of these

may be labeled the ‘‘separate interview’’

approach and the other the ‘‘investigatory

proceeding’’ approach. (As will presently

appear, these are labels and not precise

descriptions.)

Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Notices 70943

4Anyone, whatever his title, who interviews

parties and others to obtain the facts necessary for

making a determination.

Separate Interview

This approach says in effect, that the

Court’s reference to furnishing an employer

an opportunity to be heard means giving the

employer a reasonable opportunity to present

his information and factual contentions about

the claim in an effective manner. To provide

such an opportunity: (1) the employer must

be asked to supply a written statement of

potentially disqualifying information and he

may be called on the telephone to give more

details when further statements from the

claimant at the interview or before indicate

that such a telephone inquiry is appropriate

or necessary and; (2) in addition, the

employer must be advised in any case

involving a determination issue that he may

also, if he wishes, appear in person or

through a representative at the local office

and supply such further information with

respect to the claim as he may have to

present. To meet this latter requirement

States may request employers at the time

they respond to the request for separation

information to indicate whether they wish to

appear at the local office to present

information on the claim. Employers who

reply affirmatively indicating a desire to

appear would be notified of the date and

place of the claimant interview and advised

that they should call the local office to

arrange for their own appearance and

interview in sufficient time so that the

information they then present may be used

in the interview with the claimant. When the

employer appears, a claims examiner will

interview him concerning the claim and

obtain from him such additional information

as he has to offer.

As is apparent, this view of the Court’s use

of the word ‘‘hearing’’ rests on a conclusion

that the Court did not refer to a proceeding

in which both parties must be given an

opportunity to appear at the same time and

place to present their information in each

other’s presence. Instead, the Court used the

term broadly to encompass a factfinding

process which would assure that each party

was permitted to present his version of the

facts in writing and by personal appearance,

be apprised of the substance of the other’s

position and then be given a further

opportunity to respond when a response

would be material to the determination.

Investigatory Proceeding

This approach takes a different view of the

Court’s use of the word ‘‘hearing’’: The

‘‘hearing’’ is to be a proceeding that is held

at a specific time and place, at which the

parties are given an opportunity to appear, in

each other’s presence, and to present their

information on the issue to the examiner

directly and in person. Consistent with this

view, the notice of the time and place of the

proceeding serves the purpose of advising the

parties when and where they should be

present if they are to attend.

The proceeding differs from the

conventional hearing in some significant

respects. The Court indicated that the

proceeding is conducted in the form of an

interview to obtain information, clarify or

verify questionable statements, and seek

explanations of inconsistent facts. It is

conducted by an examiner whose

responsibility it is to obtain all of the facts

required for a prompt and proper

determination of the claimant’s right to

benefits, and who may not act merely as an

umpire or judge of conflicting contentions of

opposing parties. Accordingly, he asks the

questions of the parties and not they of each

other (or, through their representatives, of

themselves). It is informal and does not

follow traditional modes of taking evidence.

Information obtained outside the proceeding

(written statements by the employer,

telephone calls, etc.) may be given full

consideration. In these circumstances, oaths,

a verbatim record, subpoenas and crossexamination are not required and are not

recommended.

States should also be mindful of our

continued recommendation, expressed in

UIPL 1126 that all State laws should

authorize the State agency to transfer cases

involving difficult issues of fact or law and

multiple claimants to the appeal tribunal or

the board of review for determination,

following a full and fair hearing. (See UIPL

No. 1136 for suggested legislative language

for such authorizing statutory provisions.)

II. Current Claims Taking and Interviewing

Procedures Affected by the Java Decision

In many States methods have been devised

for identifying claims which require special

handling for factfinding and nonmonetary

determination, while permitting routine nonissue cases to be processed rapidly and

economically.

Typically, this has involved brief

questioning of claimants at the initial claims

contact to obtain the reason for separation.

When an issue has been raised by the

claimant’s statement, arrangements have

been made for a subsequent factfinding

interview at which the issue is inquired into.

This has afforded time to make the monetary

determination and obtain employer

information. It has also limited extensive

interviewing to cases where claimants

continue to file claims. The postponement of

the interview has eliminated interview and

determination time for claimants who return

to work or are monetarily ineligible.

Typically, the separating employer has

been notified of the claim filed and the

claimant’s stated reason for separation.

Employers have been asked to respond if

they have any reason for questioning

eligibility. The intent has been to have this

response on hand when the previously

scheduled time for the claimant’s appearance

arrives, thus permitting an interviewer 4 to

conduct a factfinding interview based upon

the employer’s statement, as well as the

claimant’s. This kind of procedure has

afforded the claimant an opportunity to rebut

information furnished by the employer prior

to the final determination. Interviewers have

been expected to seek additional information

needed for a proper determination if the

employer statement is inadequate or he fails

to respond.

The essential elements of this process will

continue to be necessary under the following

procedures. In addition, it will be necessary

to afford an interested employer notice and

opportunity to be heard in issue cases.

III. Factfinding Proceeding Required in Issue

Cases Only

Essentially, opportunity for an interested

employer to be heard is required only when

there is an issue as to benefit entitlement.

Questions involving chargeability only

would not be governed by the requirements

of the Court’s decision. When the claimant

has indicated that he was separated for lack

of work, and the employer does not dispute

this statement, no change in existing

procedure is required. When the information

given by a claimant upon filing his claim,

taken together with the separation

information furnished by the employer, can

result only in ineligibility or disqualification,

there is no necessity to afford the employer

an opportunity to appear. When issues do not

involve any employer who is an interested

party, the predetermination factfinding

proceeding presumably would differ little

from present factfinding interviews.

Interested Parties

State law will determine who are

interested parties in addition to the claimant.

Only employers who are interested parties

must be afforded an opportunity to appear in

predetermination proceedings. In most

States, when an initial claim is filed, only the

separating employer is an interested party. In

some States, however, all base-period

employers (as well as the separating

employer) are interested parties. Whether

(and which) employers are interested parties

in connection with issues arising during a

claim series also depends upon provisions of

State law.

IV. Promptness of the Determination Process

Determinations on issues arising in

connection with new claims may be

considered on time within the meaning of the

Court’s requirement for promptness if

accomplished no later than the second week

after the week in which the claim is effective.

The proposed time limit provides for

completion of the determination process on

normal claims (nonretroactive) by the end of

the week in which the claimant would be

certifying to his first compensable week,

regardless of the type of ‘‘week’’ used by the

State.

These are examples of how this time limit

for promptness would work out with a claim

filed on August 12 (Thursday) in three

different types of State ‘‘weeks’’:

70944 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Notices

5A State agency which requires employers to

submit separation notices to the agency

automatically upon the separation of a worker will

also need to use notices of claim filed or other

appropriate notice to the employer of his right to

appear and be heard.

6 If the fifth day is a Saturday, Sunday, or holiday,

then the period runs to the next day which is not

a Saturday, Sunday, or holiday. The five-day

requirement is suggested to State agencies as

appropriate to meet the promptness limit provided

in section IV. States may wish to vary the

requirement for areas where mail delivery problems

require it.

7An explanation to employers of what is an

‘‘issue’’ in the case of a benefit claim appropriately

is included in an employer handbook or other

general informational material that is given to all

registered employers. If such an explanation has not

been supplied to all employers, it should

accompany the notice of claim filed.

8Not applicable if the State uses separate

interview type of proceeding.

9Where experience demonstrates that more time

is needed to provide reasonable notice, this period

may be modified.

Type of State ‘‘week’’ Effective date of claim Time limit for determination

1. Calendar week (claims predated to preceding Sunday).August 8 (Sunday) ........................................... August 27 (last working day of the second

week after week for which the claim was effective).

2. Calendar week (claim post-dated to following

Sunday).

August 15 (Sunday) ......................................... September 3 (last working day of second

week after week for which the claim was effective.

3. Flexible week (claim effective on date of filing).August 12 (Thursday) ...................................... September 1 (last working day of second

(flexible) week after week for which the

claim was effective).

Prompt mailing of notices is critical to

prompt completion of the process. Mailing

times involved will often make it difficult or

perhaps impossible to achieve the

promptness contemplated when notices to

employers are prepared and mailed centrally.

For this reason the procedures proposed here

envision mailing of such notices from local

offices. An employer’s failure to respond on

time to notices should not be permitted to

delay proceedings.

V. Scheduling and Notification Process

An opportunity to appear requires that the

parties be informed of the time, place and

nature of the proceeding so that the parties

can know and protect their rights.

A. Notification of Parties (See subsection B

as to mass separations.)

The procedures for providing notice to

claimants and employers include new

elements designed to inform the parties of

their opportunity to appear.

1. Notice to Employer

a. Notice of Claim Filed and Request for

Separation Information

Informing employers of their right to

appear should be tied in with the current

practices, in most State agencies, of mailing

notices of claims filed.5

The notice of claim filed should contain

the following information:

(1) The claimant’s stated reason for

separation;

(2) That the employer must post his return

of the notice within 5 calendar days of its

mailing by the agency with any information

he has concerning the circumstances of

separation or any reason he has to question

the claimant’s eligibility; 6

(3) The consequence under State law of his

failure to respond to the notice;

(4) That the claim will be determined on

the basis of available information in the

absence of a reply from him;

(5) That in cases where issues 7 are raised

by the information obtained from him or the

claimant he may attend a predetermination

factfinding proceeding;

(6) That he is not required to attend such

a proceeding and, if he chooses to rely on

written information rather than appear in

person, it will be given full consideration in

the making of the determination;

(7) That he should reply as to whether or

not he wishes to attend such a proceeding in

the case, and that if he replies that he wishes

to attend, he will be notified of the time and

place; and

(8) That benefits will be paid immediately

if allowed, even though an appeal is taken.

b. Notice to Employer of Proceeding

There are at least two methods for

notifying the employer of the actual place

and time of the proceeding. One method is

to schedule the proceeding automatically

after discovery of an issue, and to provide

information concerning the time and place of

the proceeding in the notice mailed to the

employer. The proceeding would most likely

be set for the time that the claimant is

scheduled to report to the local office.8 This

method would have the advantage of

providing earlier advice to the employer,

thus giving him a better opportunity to

decide whether he can, or wishes to, attend

the proceeding. A major disadvantage would

be that such a procedure would require an

advance allocation of space and claims

examiners’ time for such proceeding before it

is known whether the employer will appear.

The second method, which appears to be

preferable, is to schedule the proceeding after

an employer has indicated on his response to

the notice of claim filed that he intends to

appear. Better estimates can then be made of

the time required for a particular proceeding

and the time required, in the aggregate, for

all proceedings scheduled on a particular

day. It also makes possible more flexibility in

scheduling predetermination proceedings for

cases in which the employer elected not to

appear. The disadvantage of this procedure is

that it requires two contacts with employers

who indicate a desire to appear—the notice

of claim filed and the notice of time and

place of the proceeding.

When an employer has signified his

intention to appear at the proceeding, a

notice of the time and place should be mailed

to him at least three calendar days before the

scheduled date of the proceeding.9 If, for

example, the proceeding is to be held on

Tuesday, the notice should be mailed no later

than the preceding Friday. The next three

calendar days, the days of notice, would be

Saturday, Sunday, and Monday. (Note that

the mailing date has not been counted and

the date of the proceeding is the day

following the specified number of calendar

days of notice.)

When circumstances require that such

notification be given by telephone (as is

likely to be the case in separate interview

proceedings), an appropriate record should

be made of the exact information given the

employer, the name of the person to whom

the information was given, and the date and

hour of the telephone call.

c. Content of Notice to Employer of

Proceeding

If the employer who has requested an

opportunity to appear is to be given an

effective opportunity, he must be given

certain basic information concerning the

proceeding.

This should include, at least:

(1) The time, place and purpose of the

proceeding; and

(2) His right of representation and that any

person designated to appear at the

proceeding to present information on the

employer’s behalf should either have direct

knowledge of the circumstances surrounding

the issue or be able to present the written

statement of a person who has such

knowledge and/or the employer’s pertinent,

written records.

2. Notice to Claimant of Proceeding

Claimant must be informed of the

predetermination proceeding but the method

employed for notification will vary according

to whether advance notice is required and

whether other interested parties are involved

in the determination.

When no other interested parties are

involved, in most instances it will be

possible to hold the proceeding immediately

and no written notice will be required. The

claimant should be informed of the purpose

and nature of the proceeding.

If the proceeding is scheduled for a later

date, the notice to the claimant should be in

writing. This may be given by entry on the

Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Notices 70945

10The detail that needs to be included in the

individualized portions of such notices to claimants

can be reduced by attaching an adequate printed

explanation to each notice or by including

appropriate explanatory detail in claimant

handbooks or pamphlets.

11Not applicable if the State uses separate

interview type of proceeding.

12Not applicable if the State uses separate

interview type of proceeding.

claimant’s reporting booklet or on a separate

notification form. The following information

should be provided in the notice: 10

a. The time, place and purpose of the

proceeding;

b. Advice that the employer might

attend; 11

c. The need for particular evidence

(doctor’s statement, etc.) and the claimant’s

right to bring witnesses;

d. His right of representation; and

e. That he notify the local office if he

cannot attend the proceeding at the

scheduled time and the reason, so that the

office may reschedule the proceeding or take

whatever other action is appropriate.

3. Time and Place of Proceeding

The time and place of the proceeding must

neither burden the claimant nor delay

payment of benefits to which the claimant

may be found entitled. It is recommended

that the proceeding be scheduled for the day

and hour on which the claimant is scheduled

to report at the local office.12 By so

scheduling the proceeding, the local office

procedures for equalizing workloads by

spreading claimant reporting periods

throughout the days of the week would better

be maintained.

4. Requests for Postponement or Continuance

Since requests for postponement or

continuance of a proceeding may, if granted,

delay the payment of benefits that may be

due, they should not be granted except in

compelling circumstances. Such a request by

an employer, however, can often be satisfied

by asking him to appear separately from the

claimant or inviting him to submit his

information in writing or by telephone.

Since the claimant is the initiating party

who seeks prompt payment of benefits and

is moreover required as a condition of getting

benefits to report when requested by the

agency, his presence at the proceeding is

generally assured. On the infrequent

occasions when he requests a postponement

it should be granted where information from

him is necessary to make the determination

and it would be difficult to obtain from him

in writing.

B. Notice Requirements in Mass Separations

In the case of mass lay-offs where

employers furnish lists of laid-off workers to

the agency there is no need for notice to the

employer and opportunity to be heard in

person because lack of work is the cause of

separation.

In mass cases involving issues, such as

labor disputes, special procedures may be

necessary, and as recommended in UIPL Nos.

1126 and 1136, consideration should be

given to referral of the claims to the appeal

tribunal or board of review for the initial

determination.

VI. Requirements for Notice When Issues

Arise After the Initial Determination

In general, the preceding section applies

also to issues that arise during a claim series

or to an additional claim. Insofar as such

issues involve special consideration,

however, they are discussed in this section.

The Java case did not involve an issue

arising after the initial determination. The

reasoning of the Court, however, requires that

interested employers be given notice and

opportunity to be heard with respect to such

issues.

A. Issues Arising During a Claim Series

When an issue arises during a claim series

and the claimant is the only interested party,

no substantive changes from existing

procedures are required. A typical situation

would involve a claimant who, during his

regular interview, reports an illness during

the week being claimed that might warrant

denial of benefits for the week. All necessary

actions can be taken on the spot, and the

claimant may be informed of the issues and

of his right to hearing. Factfinding can then

take place, and a determination can be made.

When an issue arising during the claim

series involves any interested party in

addition to the claimant, notice and an

opportunity to be heard must be given to

such other party. The determination of the

issues may not be made until such notice and

opportunity has been provided. Such

determinations will be considered on time

within the meaning of the Court’s

requirement for promptness if issued no later

than the end of the week following the week

in which the issue arises.

B. Additional Claims

An additional claim begins a new claim

series and involves a new reason for

unemployment. Unlike a claim that may

begin a benefit year, however, such a claim

does not require a monetary determination.

It follows that payment of benefits cannot

commence until a determination of

entitlement is made after notice to the parties

and opportunity to be heard. When an issue

arises in connection with an additional

claim, and notice must be afforded to parties

other than the claimant, a proceeding must

be scheduled for a date after the filing of the

claim. As in the case of new claims,

employers should be given notice of the

claim and five calendar days in which to

respond—and to state whether they wish to

appear in person. Employers who wish to

attend should be afforded at least three

calendar days’ advance notice of time and

place of the proceeding. If the employer

elects to appear, a determination issued in

the second week after the additional claim is

effective will be considered on time within

the meaning of the Court’s requirement for

promptness. In other cases it should be

possible to issue the determination by the

end of the week after the additional claim is

effective.

VII. Conduct of the Predetermination

Proceeding

A. Investigatory Proceeding

Although the appearance of an employer or

his representative adds a new element, it

need not materially change the content of the

factfinding interview from that conducted by

interviewers prior to the Java decision. While

each State must determine how its

proceedings will be conducted, it is our

recommendation that: the proceeding should

not be recorded, the parties should not be

required to testify under oath, and the

subpoena procedure should not be used.

Each party, however, may have witnesses

appear in his behalf, and where necessary the

party or the witness may avail himself of the

services of an interpreter whom either he or

the agency may provide.

The interviewer should tactfully but firmly

control the proceedings. Each party should

be given an opportunity to present his view

of the facts, and should be given rebuttal

opportunity. The interviewer may and

should ask questions to elicit from the parties

and their witnesses information he deems

relevant to the issues in the case at hand. He

should have the parties’ questions and

answers directed to him rather than permit

questions, discussion or argument between

the parties.

In some instances a party may wish to

record the proceeding. While the agency

cannot prohibit such recordings, the practice

should be discouraged, as it may disrupt the

conduct of the proceeding. Both parties must

be informed in such cases that the agency

record will be the only official record to be

used in making the determination or in any

subsequent appeals.

1. Preparation of Factfinding Report

State practice in the preparation of

factfinding reports may be used at a

predetermination factfinding proceeding. The

common practice of taking notes which can

be used in preparing factfinding reports will

suffice. Since the factfinding report,

essentially, is a report of the interviewer, it

is not necessary that the individual parties

sign the report. However, some State agencies

may wish to have parties sign certain

statements which appear to be vital to the

proceedings, and this may be done.

2. Separate Appearances of Claimant and

Employer

The investigatory type of predetermination

proceeding is intended to afford the

employer an opportunity to appear at the

factfinding interview at the same time as the

claimant. Provision for employer appearance

should not be made for any place other than

the local office where the claimant is filing

and the proceeding is scheduled. If an

employer requests an opportunity to make

his appearance elsewhere, he should be

asked to submit his information in writing

instead, since only the claim-filing office has

records and knowledge of the case.

If an employer wishes to appear at the

claim-filing office before the scheduled time

for the proceeding, he should be permitted to

do so if at all possible, but he should be

informed that the claimants appearance will

not be rescheduled to conform to his. (This

in effect changes the proceeding to the

separate interview type explained in VII. B.

below.)

In responding to a request by an employer

for separate appearance, he should also be

informed again that information may be

70946 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Notices

13Appropriate legislative language for this

purpose was transmitted to State agencies with

UIPL No. 1136, July 19, 1971.

14Some increase in overpayments will result from

the new requirements for immediate payment of

benefits. If State law requires recovery, claimants

should, of course, be informed that benefits being

paid under such circumstances may (according to

requirements of State law) be subject to recovery or

future offset as the case may be. This information

may be included in general informational material

furnished to all claimants. In any event, it should

not be presented in such a manner as to discourage

claimants from accepting the benefits due them.

15For additional discussion see Explanatory

Statement, Attachment No. 1 to UIPL No. 1136, July

19, 1971.

submitted in writing and it will be given full

consideration in the making of the

determination.

3. Representation of Parties

Each party has the right to be represented

by a person of his choice, but this right has

been seldom exercised at the determination

level. In view of the Java decision,

representation at the factfinding proceeding

may increase. The handling of the

representative adds a new dimension to the

interviewer’s task. The interviewer should

ascertain at the outset the status of the

representative and he should inform him that

his participation will be limited to the

presentation of information necessary to

decide the issues, and as to which he has

direct knowledge or is able to present the

written statement of a person who has such

knowledge and/or the employer’s pertinent

written records.

B. Separate Interview

This type of proceeding consists essentially

of providing for a personal interview on the

determination issues with an employer who

has requested it in addition to the

predetermination factfinding interview with

the claimant. Accordingly, the considerations

that make recordings, oaths, and subpoenas

inappropriate in the investigatory

proceedings apply with equal or greater force

in the separate-interview proceeding. No

change from pre-Java practices would appear

necessary in the claimant-interview portion

of the proceeding.

The employer-interview part of the

proceeding would differ from any other

factfinding interview conducted by the

interviewer only in the need for the

interviewer to take into account the fact that

the interview takes place as the result of the

employer’s request and that it usually

supplements written information already

provided by the employer. Presumably, the

employer in such an interview has additional

information and the interviewer should

permit him to present that additional

information before any questions designed to

get other information are directed to the

employer. The employer may wish to raise

questions that he believes should be put to

the claimant. These should be accepted when

they are pertinent to claimant’s benefit

eligibility and the employer should be

assured that they will be taken up in the

claimant interview.

Subparagraphs A. 1 and 3 would appear to

be generally applicable also to separate

interviews.

C. Referral of Cases to the Appeals Authority

Certain types of cases are not suited to the

predetermination proceeding contemplated

for the great majority of determination issues.

These are cases involving difficult questions

of fact or law and multiple claimants. It is

recommended that State agencies use their

authority to transfer such cases to appeal

tribunals or boards of review for

determination. If a State agency now lacks

legislative authority for transferring such

cases to an appeals body, it should seek such

authority.13 As in other types of

predetermination proceedings, promptness is

crucial.

D. Notice of Determination

Present State practices with respect to the

preparation and distribution of Notices of

Determination are not affected by the changes

in procedures required to insure that both

claimant and employer(s) are given

reasonable notice and opportunity to be

heard. Any needed adaptations would

present no problem so long as they do not

interfere with the prompt completion of the

determination process. In any event, the

claimant is entitled to a written Notice of

Determination as provided in section 6013,

Standard for Claim DeterminationsSeparation Information, Part V of the ES

Manual.

VIII. Payment of Benefits During

Investigation, Determination,

Redetermination and Appeals (Including

Higher Authority) 14

A. Under the Java decision benefits

allowed in an initial determination may not

be withheld by reason of the pendency of the

appeal period or of an appeal.

B. In addition, the reasoning of the Court

in the Java decision supports the payment of

benefits as indicated below.15

1. Redeterminations

Since practices vary so widely among the

States, the following covers only the most

common kinds of redeterminations: (a) When

a claimant was initially found ineligible and

another interested party is involved, notice

and opportunity to be heard in a

predetermination proceeding must be offered

both parties before a redetermination can be

made. No benefits may be paid until the

redetermination is completed and then

benefits are to be paid immediately or

denied, according to the redetermination. (b)

When a claimant was initially found eligible,

notice and opportunity to be heard must be

afforded to the claimant and any other

interested party before a redetermination can

be made that could modify or reverse that

initial determination. In the meantime

benefits may not be withheld. Benefits will

be paid or denied upon the issuance of the

redetermination and in accordance

therewith.

2. Appeals

Except as it may be precluded by a ‘‘double

affirmance’’ provision in the State law, an

appeal decision should be given immediate

effect when it is issued and benefits should

be paid or denied in accordance with it

regardless of the issue involved or previous

determinations and decisions and regardless

of the fact that a further appeal may be taken.

3. Payment of Benefits for Weeks Not in

Dispute

In the case of an appeal, it has been the

practice to pay benefits only for weeks ‘‘not

in dispute.’’ For example, in a voluntary-quit

case where State law provides a variable 1-

to-6 week disqualification, and a 3-week

disqualification has been assessed, benefits

would be withheld for 6 weeks, because the

appeal decision could result in increasing the

disqualification. The reasoning of the Court

in the Java case leads to the conclusion that

benefits after the 3-week disqualification

initially imposed are due and are to be paid

if the claimant is eligible for such later

weeks.

4. Suspension of Benefit Payments During a

Claim Series

In the Case of any week claimed during a

claim series as to which a question arises,

such as a question of work refusal, a

determination must be made as to whether

benefits are payable. Before such a

determination, benefits will not be withheld.

When the determination has been made

following appropriate predetermination

procedures, benefits must then be paid or

denied in accordance with that

determination. When the question relates to

eligibility or possible fraud for past weeks

only, benefits claimed for current weeks may

not be suspended while an investigation is

conducted. They may be denied in

appropriate cases, however, for weeks

claimed after a determination or

redetermination has been made of the

issue(s) with respect to such prior weeks,

following notice to the interested parties and

opportunity to be heard. In order to minimize

overpayments this process should be

completed as quickly as possible.

IX. Interstate Claims, Federal Claims and

Monetary Determination Issues

A. Interstate Claims

Although the procedural concepts outlined

in this document have been stated in terms

of intrastate claims, they apply as well to

interstate claims. The interested employer in

a determination issue arising in an interstate

claim must be given an opportunity not only

to submit information concerning the claim

in written form but also, if he wishes, to

appear either in person or by representative

and submit any additional information he

has to offer that bears upon the issue. Since

it is not necessary that an employer who

wishes to make such an appearance be

interviewed in the claimant’s presence, his

opportunity to appear and be interviewed on

the claim may be provided to him in the

office of the liable State where the

determination will be made rather than in the

agent-State local office where the claimant is

to be interviewed. Obviously, such an

interview on an interstate claim with an

employer who is located in the liable State

and wishes to make an appearance would

need to be held at a time when any

information he may present can be taken into

Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Notices 70947

account in making the determination. If the

interested employer is located in the agent

State, the latter will have the responsibility

to notify the employer of the opportunity to

appear at the local office, and if he elects to

make an appearance, to schedule it at an

appropriate time.

B. Application of Java Decision to Federal

Unemployment Insurance, Training

Allowances and Related Payments

The requirements for paying benefits

promptly after a determination has been

made in the claimant’s favor, regardless of

the pendency of the appeal period or of any

appeal that has been taken from the

determination, are applicable to Federal

claims. The requirement of notice to an

interested employer and opoprtunity to be

heard will, however, have no effect on those

programs which do not involve employers as

interested parties.

Following are specifics on application of

the requirement for notice and opportunity to

be heard relating to the various kinds of

Federal claims.

UCFE: (Unemployment Compensation for

Federal Employees)

When a private employer is an interested

party to a UCFE claim, the procedures for

notice and opportunity to be heard with

respect to State UI claims are applicable.

When a Federal agency is an interested

party to a UCFE claim, the Java decision does

not change present methods of processing so

long as findings of the Federal agency, in

writing, which are final and conclusive, are

applicable in determining the claim.

UCX: (Unemployment Compensation for ExServicemen)

When a private employer is an interested

party to a UCX claim, the procedures for

notice and opportunity to be heard with

respect to State UI claims are applicable.

When a Federal agency which employed

the claimant as a civilian employee is an

interested party, the procedures applicable to

UCFE claims apply. For the purpose of the

Java procedure, a branch of the Armed Forces

for which a UCX claimant served on active

military duty is never considered to be an

interested party with respect to reasons for

separation or for not reenlisting or for not

continuing on active duty, since the State

agency does not apply the eligibility or

disqualification provisions of the State

unemployment insurance law to any of these.

Thus in such cases the notice-andopportunity-to-be-heard requirement of the

Java decision is not applicable.

TRA: (Trade Readjustment Allowances)

The procedures for implementing the Java

decision for State UI claims, with respect to

notice and opportunity to be heard, are

applicable to TRA claims with respect to

employers who are interested parties to an

issue.

Training Allowances, Disaster

Unemployment Assistance and Other Similar

Federal Payments

The procedures implementing the Java

decision, with respect to notice and

opportunity to be heard, have no effect on

factfinding procedures for determination of

issues arising under the Manpower

Development and Training Act (MDTA), the

Work Incentive Program (WIN ), or the

Disaster Unemployment Assistance

provisions of the Disaster Relief Act of 1970.

There is no employer or other interested

party involved in such cases. Established

procedures for the factfinding claimant

interview and notice of determination satisfy

the requirements for predetermination

proceedings.

C. Monetary Determinations

It should not be assumed that, because the

facts in the Java case presented a

nonmonetary determination issue, the

Court’s requirements do not also apply to

monetary determinations and

redeterminations. The principles are equally

applicable when monetary determinations or

redeterminations involve issues of fact

although the manner in which they must be

applied necessarily is affected by the nature

of the issues and the processes required to

resolve them. Some monetary ‘‘issues,’’ for

example, are simply questions of

computation or other operational matters that

relate entirely to the processing of data

already contained in the agency’s records. To

settle such questions, the State agency need

not seek information from either the

employer or the claimant and there is no

occasion for appearance by either at an

interview.

Some monetary issues, however, present

questions which cannot be resolved from a

review of the agency’s records. For example,

a claimant may question the correctness of an

employer’s wage report underlying the

agency record on which the claimant’s

monetary determination was based. Yet

another claimant may contend that his

monetary determination has not taken into

account wages he earned during his base

period that an employer omitted from his

report because, in his view, there was no

employment relationship. Common agency

practice in such cases is to make a field

investigation including a visit to the

employer’s place of business, a review of his

records and an interview with the employer

or the appropriate members of his staff who

have the necessary pertinent information.

The facts thus obtained, together with the

information submitted by the claimant, are

then used in resolving the issue and as the

basis for the necessary monetary

redetermination. When this is the case, the

process used has itself provided an

appearance by the employer in the

factfinding proceeding in addition to his

written submittal. There would ordinarily

appear to be no need to provide the employer

in such cases with yet a further opportunity

to appear in the factfinding proceeding that

precedes the monetary determination or

redetermination in question. The common

agency practice of reinterviewing the

claimant after the results of the field

investigation are available assures claimant

of his opportunity to appear and be heard

before the determination is made.

[FR Doc. 00–30266 Filed 11–27–00; 8:45 am]

BILLING CODE 4510–30–P

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

[Notice 00–139]

National Environmental Policy Act;

Mars Surveyor 2001 Mission

AGENCY: National Aeronautics and

Space Administration (NASA)

ACTION: Finding of no significant

impact.

SUMMARY: Pursuant to the National

Environmental Policy Act of 1969, as

amended (NEPA) (42 U.S.C. 4321 et

seq.), the Council on Environmental

Quality (CEQ) Regulations for

Implementing the Procedural Provisions

of NEPA (40 CFR Parts 1500–1508), and

NASA policy and procedures (14 CFR

Part 1216, Subpart 1216.3), NASA is

providing notice that although a Draft

Environmental Impact Statement (DEIS)

for the Mars Surveyor 2001 Mission was

prepared and public comments were

elicited and received, a Final

Environmental Impact Statement (FEIS)

will not be prepared. Instead, NASA has

made a finding of no significant impact

(FONSI).

The Mars Surveyor 2001 (MS 01)

mission as proposed in the DEIS

originally consisted of the launch and

operation of two separate spacecraft—

the MS 01 orbiter and the MS 01 lander/

rover. The DEIS addressed the potential

environmental impacts associated with

implementation of this mission

configuration (the Proposed Action) and

included a risk assessment for potential

launch accidents involving the release

of radioactive material from the MS 01

lander/rover spacecraft. The MS 01

orbiter spacecraft would carry no

radioactive material or other extremely

hazardous materials or equipment and,

hence, would involve a conventional

launch entailing no significant effects to

the quality of the human environment.

The DEIS also addressed the potential

environmental impacts of alternatives to

this Proposed Action as well as the No

Action alternative.

Events that occurred during the

intervening months since publication of

the DEIS, including loss of the Mars

Polar Lander mission on December 3,

1999, early in the public review period

for the DEIS, have resulted in a

reevaluation by NASA of the Mars

Surveyor 2001 mission. As a result of

that reevaluation, NASA has proposed

to reconfigure the Mars Surveyor 2001

mission to launch only the MS 01

orbiter spacecraft in 2001. Thus the

FONSI issued today covers the proposed

reconfigured Mars Surveyor 2001

mission, specifically launch of the MS

01 orbiter only. Should NASA decide at