[Federal Register Volume 66, Number 4 (Friday, January 5, 2001)]
[Proposed Rules]
[Pages 1059-1064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-319]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Regs. Nos. 4 and 16]
RIN 0960-AE97


Federal Old-Age, Survivors and Disability Insurance and 
Supplemental Security Income for the Aged, Blind, and Disabled; 
Scheduling Video Teleconference Hearings Before Administrative Law 
Judges

AGENCY: Social Security Administration (SSA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: We propose to revise our rules to allow us to schedule video 
teleconference (VTC) hearings before administrative law judges (ALJs). 
We also propose to revise our rules so that if we schedule a VTC 
hearing for someone who does not want one, we will schedule a 
traditional, in-person hearing; that is, a hearing where all 
participants are at the same location. We also will schedule an in-
person hearing if an individual objects to an expert witness testifying 
by VTC. We are proposing these revisions to provide us with greater 
flexibility in scheduling and holding hearings, to improve hearing 
process efficiency and to extend

[[Page 1060]]

another service delivery option to our customers.

DATES: To be sure that your comments are considered, we must receive 
them no later than March 6, 2001.

ADDRESSES: Comments should be submitted in writing to the Commissioner 
of Social Security, P.O. Box 17703, Baltimore, MD 21235-7703; sent by 
telefax to (410) 966-2830; sent by e-mail to <a href="/cdn-cgi/l/email-protection#3b495e5c4e575a4f525455487b48485a155c544d"><span class="__cf_email__" data-cfemail="56243331233a37223f3938251625253778313920">[email protected]</span></a>; or 
delivered to the Office of Process and Innovation Management, Social 
Security Administration, L2109 West Low Rise Building, 6401 Security 
Boulevard, Baltimore, MD 21235-6401 between 8 a.m. and 4:30 p.m. on 
regular business days. Comments may be inspected during these hours by 
making arrangements with the contact person shown below.

FOR FURTHER INFORMATION CONTACT: Georgia E. Myers, Regulations Officer, 
Office of Process and Innovation Management, Social Security 
Administration, L2109 West Low Rise, 6401 Security Boulevard, 
Baltimore, MD 21235-6401, (410) 965-3632 or TTY 1-800-988-5906, for 
information about this notice. 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 web site, Social Security Online, 
at www.SSA.gov.

SUPPLEMENTARY INFORMATION:

Background

    Nationally, over 500,000 requests for a hearing before an ALJ are 
filed with us each year. Hearings have traditionally been held with all 
participants (the party(ies) to the hearing, the ALJ, and, as 
appropriate, the representative, medical and/or vocational expert 
witness(es), or a translator) present at the same location: either a 
hearing office or a remote hearing location. (To accommodate those 
individuals who do not live near a hearing office ALJs hold hearings at 
remote hearing locations which are generally at least 75 miles from a 
hearing office.) Approximately 40 percent of hearings are held at 
remote hearing locations.
    To make travel to remote hearing locations as cost effective as 
possible, hearing offices wait until they have a sufficient number of 
requests for hearing to schedule a full day or, if travel to a remote 
hearing location requires an overnight stay, more than one day of 
hearings. Because of the need to accrue a docket, ALJs travel to some 
remote hearing locations infrequently. Because many remote hearing 
locations are in less-populous areas, it can be difficult to find an 
appropriate expert witness(es), which may further delay scheduling a 
hearing. ALJs also travel from their assigned hearing offices to assist 
other hearing offices when the need arises.
    Whether to conduct hearings at remote locations or assist other 
hearing offices, the time ALJs spend traveling could be used to perform 
other adjudicatory responsibilities.
    In 1996 we published Social Security Ruling (SSR) 96-10p, 
Electronic Service Delivery (61 FR 68808). In SSR 96-10p, we explained 
that we planned to explore ways for our customers to do business with 
us electronically. We also explained that we would not require 
customers to do business with us electronically, but that we would use 
technology to provide options for different service deliveries. Video 
teleconferencing was one of the technologies we identified as having 
the potential to serve our customers better. (A video teleconference 
provides real-time transmission of audio and video between two or more 
locations and permits individuals to see, hear, and speak with each 
other as though they were at the same location.)
    We recently completed tests in which we conducted video 
teleconference hearings between the Huntington, West Virginia, hearing 
office and its Prestonburg, Kentucky, remote location; the Albuquerque, 
New Mexico, hearing office and its El Paso, Texas, remote location; and 
the West Des Moines, Iowa, hearing office with tie-in to the Iowa 
Communications Network (ICN). (The ICN is a statewide network that 
places video teleconferencing facilities within about 20 miles of most 
Iowa residents.) We asked individuals to participate in the tests, but 
did not schedule a VTC hearing until we received an individual's 
written concurrence.
    All three sites had some equipment problems, particularly at the 
beginning of the tests. Although we rescheduled delayed hearings as 
quickly as possible, some representatives advised their clients not to 
elect a video teleconference hearing based on their initial 
experiences, especially in the Albuquerque-El Paso and Huntington-
Prestonburg tests. In those two tests, an individual who elected a 
video teleconference hearing still had to travel to a remote hearing 
location; the same remote hearing location to which he or she would 
have had to travel for an in-person hearing. Thus, although having a 
video teleconference hearing at either of these sites had the potential 
to provide a more expeditious hearing, there was no travel benefit to 
the individual. Because participation rates at Huntington-Prestonburg 
and Albuquerque-El Paso were low we have not attempted to draw 
inferences about customer service or satisfaction from these tests.
    Our experience was very different in Iowa, where we were not 
limited to using an established remote hearing location but had the 
benefit of the wide-ranging ICN. In Iowa, no one electing a video 
teleconference hearing had to travel more than about 20 miles from his 
or her home to have a hearing. The participation rate for the Iowa test 
was over 40 percent; that is, of the individuals to whom we offered a 
hearing, over 40 percent agreed to have, and had, a video 
teleconference hearing.
    SSA surveyed participants from the three tests to assess customer 
satisfaction with video teleconference hearings. A large percentage of 
the Iowa respondents rated the VTC hearing as ``convenient'' or ``very 
convenient,'' and overall service as either ``good'' or ``very good.'' 
Test data show that processing time for video teleconference hearings 
was substantially less than for in-person remote location hearings 
during the same time period, and that the ratio of hearings held to 
hearings scheduled was significantly higher for video teleconference 
hearings than for in-person hearings. Being able to hold hearings as 
scheduled increases our efficiency because we do not have to recontact 
the individual to determine why he or she did not appear at a scheduled 
hearing nor reschedule the hearing (which can be time consuming, 
especially when an expert witness(es) has been scheduled to testify). 
Further, an ALJ does not spend time waiting for someone who does not 
appear, as would be the case in an in-person remote location hearing.
    Based on all these factors--customer satisfaction, ability to 
provide more timely hearings, savings in ALJ travel time, faster case 
processing, and higher ratio of hearings held to hearings scheduled--we 
decided that conducting hearings by VTC is an efficient service 
delivery alternative. We also decided that scheduling a VTC hearing, 
rather than asking someone to elect a VTC hearing, would improve 
hearing office efficiency and would permit us to provide faster access 
to a hearing for some individuals.
    We plan to begin using video teleconferencing facilities in the 
servicing area of a hearing office when the Associate Commissioner of 
the Office of Hearings and Appeals determines that hearings can be 
conducted more efficiently in that area by video teleconferencing than 
by conducting traditional, in-person hearings where all the 
participants are

[[Page 1061]]

at the same location. We foresee initially scheduling VTC hearings 
where we could provide faster access to a hearing because otherwise:
    <bullet> We would need to accrue a docket for a remote hearing 
location.
    <bullet> An ALJ would need to travel to assist another hearing 
office.
    <bullet> An expert witness(es) or appropriate medical specialist(s) 
would not be available for a hearing location. (In such a case, all 
participants could be at different locations; for example, the ALJ at a 
hearing office, the individual at a remote hearing site or another 
hearing office, and the expert witness(es) at a third location.)
    At first, we plan to locate most remote VTC hearing sites either in 
space where we have a long-term lease or in another federal building. 
We are investigating sharing VTC facilities with other federal agencies 
and states, and, if we can ensure privacy, we may eventually rent 
commercial space to expand VTC hearings as a service delivery option. 
Regardless of the type of facility, we will make certain that:
    <bullet> The individual has the same access to the hearing record 
as he or she would have with an in-person hearing.
    <bullet> There is a means of transmitting and receiving additional 
evidence between all locations and all participants.
    <bullet> An assistant is present at the VTC hearing site to operate 
the equipment and provide other help, as required.
    <bullet> The audio/video transmission is secure and the 
individual's privacy is protected.
    We will follow the same procedures for audiotaping VTC hearings 
that we do for in-person hearings but will not videotape VTC hearings. 
We also will not necessarily schedule a VTC hearing for someone who 
asks for one. In many locations, especially in the near term, we may 
not have the capability to accommodate the request. As access to video 
teleconferencing expands, we will accommodate requests for VTC hearings 
as space and time permit. Should there be a problem with the VTC 
equipment, before or during a hearing, we will reschedule the hearing 
as we do now when unforeseen circumstances require us to reschedule a 
hearing: at the earliest time possible based on the request for hearing 
filing date.
    Despite the fact that conducting hearings by VTC has the potential 
to improve customer service, under these regulations we will not 
require anyone to have a VTC hearing who does not want one. Under these 
regulations, if an individual objects to having a VTC hearing or to an 
expert witness(es) testifying by VTC we will schedule an in-person 
hearing. In both instances, we will reschedule the hearing at the 
earliest time possible based on the request for hearing filing date.
    To ensure that an individual fully understands the right to decline 
to have a VTC hearing or to have an expert witness(es) testify by VTC, 
the notice of VTC hearing will clearly state:
    <bullet> What it means to have a VTC hearing.
    <bullet> That we have scheduled a VTC hearing for him or her or 
have scheduled an expert witness(es) to testify by VTC.
    <bullet> That we will schedule an in-person hearing if the 
individual tells us he or she does not want a VTC hearing or does not 
want an expert witness(es) to testify by VTC.
    <bullet> How to tell us if he or she does not want to have a VTC 
hearing or does not want an expert witness(es) to testify by VTC.
    We will collect information about VTC hearings to ensure that 
individuals:
    <bullet> Understand they are not required to have a VTC hearing or 
to have an expert witness(es) testify by VTC.
    <bullet> Know how to tell us if they do not want a VTC hearing or 
do not want an expert witness(es) to testify by VTC.
    <bullet> Receive a full and fair hearing.
and to ensure that:
    <bullet> There is no significant difference in the outcome of in-
person and VTC hearings.
    <bullet> We maintain a high degree of accuracy in our hearing 
decisions.

Proposed Changes

    We propose to revise 20 CFR 404.929 and 416.1429 to state that we 
will conduct hearings by VTC, in addition to in-person hearings at 
which all participants are present at the same location. We propose to 
revise 20 CFR 404.936 and 416.1436 to state that we may schedule a VTC 
hearing or an expert witness(es) to testify by Video teleconference, 
and if we do, and an individual tells us he or she wants an in-person 
hearing, we will schedule an in-person hearing. We propose to revise 20 
CFR 404.938 and 416.1438 to state that if we schedule your hearing as a 
video teleconference hearing, or if we schedule a witness to appear at 
the hearing by video teleconference, the notice of hearing will provide 
information about a VTC hearing and about how you can tell us that you 
do not want to have a VTC hearing or have an expert witness testify by 
video teleconference.

Electronic Version

    The electronic file of this document is available on the date of 
publication in the Federal Register on the Internet site for the 
Government Printing Office, http://www.access.gpo.gov/su docs/aces/
aces140.html. It is also available on SSA's Internet site, SSA Online, 
at http://www.ssa.gov.

Clarity of the Proposed Rules

    Executive Order 12866 and the President's memorandum of June 1, 
1998, require each agency to write all rules in plain language. In 
addition to your substantive comments on these proposed rules, we 
invite your comments on how to make the rules easier to understand. For 
example:

--Have we organized the material to suit your needs?
--Are the requirements in the rules clearly stated?
--Do the rules contain technical language or jargon that isn't clear?
--Would a different format (grouping and order of sections, use of 
headings, paragraphing) make the rules easier to understand?
--Would more (but shorter) sections be better?
--Could we improve clarity by adding tables, lists, or diagrams?
--What else could we do to make the rules easier to understand?

Regulatory Procedures

Executive Order 12866

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

Regulatory Flexibility Act

    We certify that these proposed rules, if promulgated, will not have 
a significant economic impact on a substantial number of small entities 
because they affect only individuals. Therefore, a regulatory 
flexibility analysis as provided in the Regulatory Flexibility Act, as 
amended, is not required.

Paperwork Reduction Act

    There is a reporting requirement in proposed Secs. 404.936 and 
416.1436, which requires individuals to notify us if they object to 
having their hearing conducted or an expert witness(es) testify by 
video teleconference. As required by the Paperwork Reduction Act of 
1995, we have submitted a copy of this information collection 
requirement to OMB for its review. Other organizations and individuals 
desiring to submit comments on the information collection requirements

[[Page 1062]]

should direct them to the Office of Information and Regulatory Affairs, 
OMB, New Executive Office Building, Room 3208, Washington, DC 20503, 
ATTENTION: OMB Desk Officer for SSA.
    The public reporting burden for this collection of information is 
estimated to average 10 minutes per response. This includes the time it 
will take to understand what is needed, gather the necessary facts, and 
provide the information needed. Under our near-term capability to 
conduct video teleconference hearings, we expect there will be 3,000 
requests per year. Therefore, the annual reporting burden is expected 
to be 500 hours. If you have any comments or suggestions on this 
estimate, write to the Social Security Administration, ATTN: Reports 
Clearance Officer, 1-A-21 Operations Building, Baltimore, MD 21235.
    SSA is soliciting comments from the public in order to:
    <bullet> Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
    <bullet> Evaluate the accuracy of the agency's estimate of the 
burden of the proposed collection of information, including the 
validity of the methodology and assumptions used;
    <bullet> Enhance the quality, utility, and clarity of the 
information to be collected; and
    <bullet> Minimize the burden of the collection of information on 
those who are to respond including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques, or other forms of information technology (e.g., permitting 
electronic submission of responses).
    <bullet> (Catalog of Federal Domestic Assistance Program Nos. 
96.001, Social Security-Disability Insurance; 96.002, Social 
Security-Retirement Insurance; 96.003, Social Security-Special 
Benefits for Persons Aged 72 and Over; 96.004, Social Security-
Survivors Insurance; 96.006, Supplemental Security Income.)

List of Subjects

20 CFR Part 404

    Administrative practice and procedure, Aged, Blind, Disability 
benefits, Old-age, survivors and disability insurance, Reporting and 
recordkeeping requirements, Social security.

20 CFR Part 416

    Administrative practice and procedure, Aged, Blind, Disability 
benefits, Public assistance programs, Reporting and recordkeeping 
requirements, Supplemental Security Income (SSI).

    Dated: December 22, 2000.
Kenneth S. Apfel,
Commissioner of Social Security.
    For the reasons set out in the preamble, we propose to amend 
subpart J of part 404 and subpart N of part 416 of chapter III of title 
20 of the Code of Federal Regulations as set forth below:

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

    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, 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, 425, and 
902(a)(5); 31 U.S.C. 3720A; 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).

    2. Section 404.929 is revised to read as follows:


Sec. 404.929  Hearing before an administrative law judge--general.

    If you are dissatisfied with one of the determinations or decisions 
listed in Sec. 404.930 of this part you may request a hearing. The 
Associate Commissioner for Hearings and Appeals, or his or her 
delegate, shall appoint an administrative law judge to conduct the 
hearing. If circumstances warrant, the Associate Commissioner, or his 
or her delegate, may assign your case to another administrative law 
judge. At the hearing you may appear in person (that is, where all 
participants are present at the same location) or by video 
teleconference, submit new evidence, examine the evidence used in 
making the determination or decision under review, and present and 
question witnesses. The administrative law judge who conducts the 
hearing may ask you questions. He or she shall issue a decision based 
on the hearing record. If you waive your right to appear at the 
hearing, either in person or by video teleconference, the 
administrative law judge will make a decision based on the evidence 
that is in the file and any new evidence that may have been submitted 
for consideration.
    3. Section 404.936 is revised to read as follows:


Sec. 404.936  Time, place and type of hearing before an administrative 
law judge.

    (a) We may schedule your hearing by video teleconference if we 
determine that it is more efficient to do so and the technology is 
available in the area where you live. You will receive a written notice 
if we schedule a video teleconference hearing for you. The notice will 
tell you that if you do not want the hearing held by video 
teleconference, you must tell us so as explained in the notice, and we 
will schedule an in-person hearing for you.
    (b) If we determine that it is not more efficient or if the 
technology is not available in the area where you live, we will 
schedule an in-person hearing for you. The administrative law judge 
sets the time and the place for the in-person hearing.
    (c) The administrative law judge may change the site and/or time of 
the videoconference hearing or the time and place of the in-person 
hearing, if it is necessary. After sending you reasonable notice of the 
proposed action, the administrative law judge may adjourn or postpone 
the hearing or reopen it to receive additional evidence any time before 
he or she notifies you of a hearing decision. We hold hearings in the 
50 States, the District of Columbia, American Samoa, Guam, the Northern 
Mariana Islands, the Commonwealth of Puerto Rico and the Virgin 
Islands.
    (d) If you object to the site and/or time of your scheduled 
videoconference hearing or to the time and/or place of your scheduled 
in-person hearing, you must notify the administrative law judge at the 
earliest possible opportunity before the time set for the hearing. You 
must state the reason for your objection and state the site and/or time 
you want the videoconference hearing to be held or the time and/or 
place you want the in-person hearing to be held. If at all possible, 
the request should be in writing. The administrative law judge will 
change the site and/or time of the videoconference hearing or the time 
and/or place of the in-person hearing if you have good cause, as 
determined under paragraphs (e)(1) and (2) of this section. Section 
404.938 of this part provides procedures we will follow when you do not 
respond to a notice of hearing.
    (e) The administrative law judge will find good cause for changing 
the site and/or time of your scheduled videoconference hearing or the 
time and/or place of your scheduled in-person hearing, and will 
reschedule your hearing if your reason is one of the following 
circumstances and is supported by the evidence:
    (1) You or your representative are unable to attend or to travel to 
the scheduled hearing because of a serious physical or mental 
condition, incapacitating injury, or death in the family; or

[[Page 1063]]

    (2) Severe weather conditions make it impossible to travel to the 
hearing.
    (f) In determining whether good cause exists in circumstances other 
than those set out in paragraph (e) of this section, the administrative 
law judge will consider your reason for requesting the change, the 
facts supporting it, and the impact of the proposed change on the 
efficient administration of the hearing process. Factors affecting the 
impact of the change include, but are not limited to, the effect on the 
processing of other scheduled hearings, delays which might occur in 
rescheduling your hearing, and whether any prior changes were granted 
to you. Examples of such other circumstances, which you might give for 
requesting a change in the time or place of the hearing, include, but 
are not limited to, the following:
    (1) You have attempted to obtain a representative but need 
additional time;
    (2) Your representative was appointed within 30 days of the 
scheduled hearing and needs additional time to prepare for the hearing;
    (3) Your representative has a prior commitment to be in court or at 
another administrative hearing on the date scheduled for the hearing;
    (4) A witness who will testify to facts material to your case would 
be unavailable to attend the scheduled hearing and the evidence cannot 
be otherwise obtained;
    (5) Transportation is not readily available for you to travel to 
the hearing;
    (6) You live closer to another hearing location; or
    (7) You are unrepresented, and you are unable to respond to the 
notice of hearing because of any physical, mental, educational, or 
linguistic limitations (including any lack of facility with the English 
language) which you may have.
    4. Section 404.938 is revised to read as follows:


Sec. 404.938  Notice of hearing before an administrative law judge.

    (a) General notice information: After your hearing has been 
scheduled, we will mail notice of the hearing to you at your last known 
address, or give the notice to you by personal service, unless you have 
indicated in writing that you do not wish to receive this notice. The 
notice will be mailed or served at least 20 days before the hearing. 
The notice of hearing will contain a statement of the specific issues 
to be decided and tell you that you may designate a person to represent 
you during the proceedings. The notice will also contain an explanation 
of the procedures for requesting a change in the time or place of your 
hearing, a reminder that if you fail to appear at your scheduled 
hearing without good cause, the ALJ may dismiss your hearing request 
and other information about the scheduling and conduct of your hearing. 
If you or your representative do not acknowledge receipt of the notice 
of hearing, we will attempt to contact you for an explanation. If you 
tell us that you did not receive the notice of hearing, an amended 
notice will be sent to you by certified mail. See Sec. 404.936 of this 
part for the procedures we will follow in deciding whether the time of 
your scheduled videoconference hearing or the time or place of your 
scheduled in-person hearing will be changed if you do not respond to 
the notice of hearing.
    (b) Hearing via video conferencing: If we determine that it is more 
efficient and if the technology is available in the area where you 
live, we will schedule your hearing as a video teleconference. If we 
schedule a video teleconference for you, your notice, in addition to 
the information in paragraph (a) of this section, will also clearly 
state what it means to have a video teleconference hearing and if we 
have scheduled an expert witness(es) to testify by video 
teleconference. The notice will contain an explanation of how to let us 
know if you do not want to have a video teleconference hearing or do 
not want an expert witness to testify via video teleconference. We will 
schedule an in-person hearing for you if you tell us that you do not 
want a video teleconference hearing or do not want an expert witness to 
testify via video teleconference. Your notice will also contain an 
explanation of the procedures for requesting a change in the time of 
your scheduled videoconference hearing.
    (c) For a hearing in-person before an administrative law judge: If 
we determine that it is not more efficient or if the technology is not 
available in the area where you live, an in-person hearing will be 
scheduled for you.

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

Subpart N--[Amended]

    5. The authority citation for subpart N of part 416 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); 31 U.S.C. 
3720A.

    6. Section 416.1429 is revised to read as follows:


Sec. 416.1429  Hearing before an administrative law judge--general.

    If you are dissatisfied with one of the determinations or decisions 
listed in Sec. 416.1430 of this part you may request a hearing. The 
Associate Commissioner for Hearings and Appeals, or his or her 
delegate, shall appoint an administrative law judge to conduct the 
hearing. If circumstances warrant, the Associate Commissioner, or his 
or her delegate, may assign your case to another administrative law 
judge. At the hearing you may appear in person (that is, where all 
participants are present at the same location) or by video 
teleconference, submit new evidence, examine the evidence used in 
making the determination or decision under review, and present and 
question witnesses. The administrative law judge who conducts the 
hearing may ask you questions. He or she shall issue a decision based 
on the hearing record. If you waive your right to appear at a hearing, 
either in person or by video teleconference, the administrative law 
judge will make a decision based on the evidence that is in the file 
and any new evidence that may have been submitted for consideration.
    7. Section 416.1436 is revised to read as follows:


Sec. 416.1436  Time, place and type of hearing before an administrative 
law judge.

    (a) We may schedule your hearing by video teleconference if we 
determine that it is more efficient to do so and the technology is 
available in the area where you live. You will receive a written notice 
if we schedule a video teleconference hearing for you. The notice will 
tell you that if you do not want the hearing held by video 
teleconference, you must tell us so as explained in the notice, and we 
will schedule an in-person hearing for you.
    (b) If we determine that it is not more efficient or if the 
technology is not available in the area where you live, we will 
schedule an in-person hearing for you. The administrative law judge 
sets the time and the place for the in-person hearing.
    (c) The administrative law judge may change the site and/or time of 
the videoconference hearing or the time and place of the in-person 
hearing, if it is necessary. After sending you reasonable notice of the 
proposed action, the administrative law judge may adjourn or postpone 
the hearing or reopen it to receive additional evidence any time before 
he or she notifies you of a hearing decision. We hold hearings in the 
50 States, the District of Columbia, and the Northern Mariana Islands.
    (d) If you object to the site and/or time of your scheduled 
videoconference hearing or to the time and/or place of your scheduled 
in-person hearing, you must notify the administrative law judge

[[Page 1064]]

at the earliest possible opportunity before the time set for the 
hearing. You must state the reason for your objection and state the 
site and/or time you want the videoconference hearing to be held or the 
time and/or place you want the in-person hearing to be held. If at all 
possible, the request should be in writing. The administrative law 
judge will change the site and/or time of the videoconference hearing 
or the time and/or place of the in-person hearing if you have good 
cause, as determined under paragraphs (e)(1) and (2) of this section. 
Section 416.1438 of this part provides procedures we will follow when 
you do not respond to a notice of hearing.
    (e) The administrative law judge will find good cause for changing 
the site and/or time of your scheduled videoconference hearing or the 
time and/or place of your scheduled in-person hearing, and will 
reschedule your hearing if your reason is one of the following 
circumstances and is supported by the evidence:
    (1) You or your representative are unable to attend or to travel to 
the scheduled hearing because of a serious physical or mental 
condition, incapacitating injury, or death in the family; or
    (2) Severe weather conditions make it impossible to travel to the 
hearing.
    (f) In determining whether good cause exists in circumstances other 
than those set out in paragraph (e) of this section, the administrative 
law judge will consider your reason for requesting the change, the 
facts supporting it, and the impact of the proposed change on the 
efficient administration of the hearing process. Factors affecting the 
impact of the change include, but are not limited to, the effect on the 
processing of other scheduled hearings, delays which might occur in 
rescheduling your hearing, and whether any prior changes were granted 
to you. Examples of such other circumstances, which you might give for 
requesting a change in the time or place of the hearing, include, but 
are not limited to, the following:
    (1) You have attempted to obtain a representative but need 
additional time;
    (2) Your representative was appointed within 30 days of the 
scheduled hearing and needs additional time to prepare for the hearing;
    (3) Your representative has a prior commitment to be in court or at 
another administrative hearing on the date scheduled for the hearing;
    (4) A witness who will testify to facts material to your case would 
be unavailable to attend the scheduled hearing and the evidence cannot 
be otherwise obtained;
    (5) Transportation is not readily available for you to travel to 
the hearing;
    (6) You live closer to another hearing location; or
    (7) You are unrepresented, and you are unable to respond to the 
notice of hearing because of any physical, mental, educational, or 
linguistic limitations (including any lack of facility with the English 
language) which you may have.
    8. Section 416.1438 is revised to read as follows:


Sec. 416.1438  Notice of a hearing before an administrative law judge.

    (a) General notice information: After your hearing has been 
scheduled, we will mail notice of the hearing to you at your last known 
address, or give the notice to you by personal service, unless you have 
indicated in writing that you do not wish to receive this notice. The 
notice will be mailed or served at least 20 days before the hearing. 
The notice of hearing will contain a statement of the specific issues 
to be decided and tell you that you may designate a person to represent 
you during the proceedings. The notice will also contain an explanation 
of the procedures for requesting a change in the time or place of your 
hearing, a reminder that if you fail to appear at your scheduled 
hearing without good cause, the ALJ may dismiss your hearing request 
and other information about the scheduling and conduct of your hearing. 
If you or your representative do not acknowledge receipt of the notice 
of hearing, we will attempt to contact you for an explanation. If you 
tell us that you did not receive the notice of hearing, an amended 
notice will be sent to you by certified mail. See Sec. 416.1436 of this 
part for the procedures we will follow in deciding whether the time of 
your scheduled videoconference hearing or the time or place of your 
scheduled in-person hearing will be changed if you do not respond to 
the notice of hearing.
    (b) Hearing via video conferencing: If we determine that it is more 
efficient and if the technology is available in the area where you 
live, we will schedule your hearing as a video teleconference. If we 
schedule a video teleconference for you, your notice, in addition to 
the information in paragraph (a) of this section, will also clearly 
state what it means to have a video teleconference hearing and if we 
have scheduled an expert witness(es) to testify by video 
teleconference. The notice will contain an explanation of how to let us 
know if you do not want to have a video teleconference hearing or do 
not want an expert witness to testify via video teleconference. We will 
schedule an in-person hearing for you if you tell us that you do not 
want a video teleconference hearing or do not want an expert witness to 
testify via video teleconference. Your notice will also contain an 
explanation of the procedures for requesting a change in the time of 
your scheduled videoconference hearing.
    (c) For a hearing in-person before an administrative law judge: If 
we determine that it is not more efficient or if the technology is not 
available in the area where you live, an in-person hearing will be 
scheduled for you.

[FR Doc. 01-319 Filed 1-4-01; 8:45 am]
BILLING CODE 4191-02-P


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