Amendments to Procedures for Certain Determinations and Decisions, 65366-65371 [2011-27236]
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Federal Register / Vol. 76, No. 204 / Friday, October 21, 2011 / Rules and Regulations
Dec. 11–01 should be adopted as a final
rule without change.
International Trade, (202) 863–6567.
Legal Aspects: Elif Eroglu, Office of
International Trade, (202) 325–0277.
SUPPLEMENTARY INFORMATION:
Background
On January 19, 2006, the United
States and the Sultanate of Oman (the
‘‘Parties’’) entered into the U.S.-Oman
Free Trade Agreement (‘‘OFTA’’ or
‘‘Agreement’’). The provisions of the
OFTA were adopted by the United
States with the enactment of the United
States-Oman Free Trade Agreement
Implementation Act (the ‘‘Act’’), Public
Law 109–283, 120 Stat. 1191 (19 U.S.C.
3805 note), on September 26, 2006.
Section 206 of the Act requires that
regulations be prescribed as necessary
pending the President issuing a
proclamation to implement the
Agreement.
Following Presidential Proclamation
8332, CBP published on January 6,
2011, CBP Dec. 11–01 in the Federal
Register (76 FR 697), setting forth
interim amendments to implement the
preferential tariff treatment and
customs-related provisions of the OFTA.
In order to provide transparency and
facilitate their use, the majority of the
OFTA implementing regulations set
forth in CBP Dec. 11–01 were included
within new subpart P in part 10 of the
CBP regulations (19 CFR part 10).
However, in those cases in which OFTA
implementation was more appropriate
in the context of an existing regulatory
provision, the OFTA regulatory text was
incorporated in an existing part within
the CBP regulations. For a detailed
description of the pertinent provisions
of the Agreement and of the OFTA
implementing regulations, please see
CBP Dec. 11–01.
Although the interim regulatory
amendments were promulgated without
prior public notice and comments
procedures and took effect on January 6,
2011, CBP Dec. 11–01 provided for the
submission of public comments that
would be considered before adopting
the interim regulations as a final rule.
The prescribed comment period closed
on March 7, 2011.
emcdonald on DSK5VPTVN1PROD with RULES
Discussion of Comment Received in
Response to CBP Dec. 11–01
One favorable response was received
to the solicitation of comments on the
interim rule set forth in CBP Dec. 11–
01 which recommended that the
government have more free trade
agreements like the OFTA.
Conclusion
Accordingly, CBP believes that the
interim regulations published as CBP
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Executive Order 12866
This document is not a regulation or
rule subject to the provisions of
Executive Order 12866 of September 30,
1993 (58 FR 51735, October 1993),
because it pertains to a foreign affairs
function of the United States and
implements an international agreement,
as described above, and therefore is
specifically exempted by section 3(d)(2)
of Executive Order 12866.
Regulatory Flexibility Act
CBP Dec. 11–01 was issued as an
interim rule rather than a notice of
proposed rulemaking because CBP had
determined that the interim regulations
involve a foreign affairs function of the
United States pursuant to section
553(a)(1) of the Administrative
Procedure Act. Because no notice of
proposed rulemaking was required, the
provisions of the Regulatory Flexibility
Act, as amended (5 U.S.C. 601 et seq.),
do not apply to this rulemaking.
Accordingly, this final rule is not
subject to the regulatory analysis
requirements or other requirements of
5 U.S.C. 603 and 604.
Paperwork Reduction Act
The collections of information in
these regulations are under review by
the Office of Management and Budget in
accordance with the requirements of the
Paperwork Reduction Act (44 U.S.C.
3507) under control number 1651–0117.
Under the Paperwork Reduction Act, an
agency may not conduct or sponsor, and
an individual is not required to respond
to, a collection of information unless it
displays a valid OMB control number.
The collections of information in
these regulations are in §§ 10.863,
10.864, 10.881, and 10.884. This
information is required in connection
with claims for preferential tariff
treatment and for the purpose of the
exercise of other rights under the OFTA
and the Act and will be used by CBP to
determine eligibility for a tariff
preference or other rights or benefits
under the OFTA and the Act. The likely
respondents are business organizations
including importers, exporters and
manufacturers.
The estimated average annual burden
associated with the collection of
information in this final rule is 0.2
hours per respondent or recordkeeper.
Signing Authority
This document is being issued in
accordance with § 0.1(a)(1) of the CBP
regulations (19 CFR 0.1(a)(1)) pertaining
to the authority of the Secretary of the
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Treasury (or his/her delegate) to
approve regulations related to certain
customs revenue functions.
List of Subjects
19 CFR Part 10
Customs duties and inspection,
Exports, Imports, Reporting and
recordkeeping requirements.
19 CFR Part 24
Accounting, Customs duties and
inspection, Reporting and
recordkeeping requirements.
19 CFR Part 162
Administrative practice and
procedure, Customs duties and
inspection, Reporting and
recordkeeping requirements.
19 CFR Part 163
Administrative practice and
procedure, Customs duties and
inspection, Exports, Imports, Reporting
and recordkeeping requirements.
19 CFR Part 178
Reporting and recordkeeping
requirements.
Amendments to the CBP Regulations
Accordingly, the interim rule
amending parts 10, 24, 162, 163, and
178 of the CBP regulations (19 CFR parts
10, 24, 162, 163, and 178), which was
published at 76 FR 697 on January 6,
2011, is adopted as a final rule without
change.
■
Alan D. Bersin,
Commissioner, U.S. Customs and Border
Protection.
Approved: October 18, 2011.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 2011–27310 Filed 10–20–11; 8:45 am]
BILLING CODE 9111–14–P
SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
[Docket No. SSA–2007–0092]
RIN 0960–AG72
Amendments to Procedures for Certain
Determinations and Decisions
Social Security Administration.
Final Rules.
AGENCY:
ACTION:
We are revising the
procedures for how claimants who
receive fully favorable revised
determinations based on prehearing
case reviews or fully favorable attorney
advisor decisions may seek further
SUMMARY:
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review. We are also revising our
procedure to provide that we will notify
claimants who receive partially
favorable determinations based on
prehearing case reviews that an
administrative law judge (ALJ) will still
hold a hearing unless all parties to the
hearing tell us in writing that we should
dismiss the hearing request. These
changes will simplify our administrative
review process and free up scarce
administrative resources that we can
better use to reduce the hearings-level
case backlog.
DATES: These final rules are effective on
November 21, 2011.
FOR FURTHER INFORMATION CONTACT:
Joshua Silverman, Office of Regulations,
Social Security Administration, 6401
Security Boulevard, Baltimore, MD
21235–6401, (410) 594–2128. For
information on eligibility or filing for
benefits, call our national toll-free
number, 1–800–772–1213 or TTY
1–800–325–0778, or visit our Internet
site, Social Security Online, at https://
www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION:
Background
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In most cases, we decide claims for
benefits using an administrative review
process that consists of four levels:
initial determination, reconsideration,
hearing, and appeal. 20 CFR 404.900
and 416.1400. We make an initial
determination at the first level. A
claimant who is dissatisfied with the
initial determination may request
reconsideration.1 A claimant
dissatisfied with the reconsidered
determination may request a hearing
before an ALJ. Finally, if dissatisfied
with the ALJ’s decision, a claimant may
request that the Appeals Council review
that decision.2 After a claimant has
completed these administrative steps
and received our final decision, he or
she may request judicial review of the
final decision in Federal district court.
We handle requests for ALJ hearings
in several ways. At the hearing level,
1 For disability claims, ten States participate in a
‘‘prototype’’ test under 20 CFR 404.906 and
416.1406. In these States, we eliminated the
reconsideration step of the administrative review
process. Claimants and other parties who are
dissatisfied with the initial determinations on their
disability cases may request a hearing before an
ALJ. The ten States are: Alabama, Alaska, California
(Los Angeles North and West Branches), Colorado,
Louisiana, Michigan, Missouri, New Hampshire,
New York, and Pennsylvania.
2 We define the words ‘‘determination’’ and
‘‘decision’’ in 20 CFR 404.901 and 416.1401. At the
initial and reconsideration levels of the
administrative review process, we issue
‘‘determinations.’’ ALJs issue ‘‘decisions,’’ as may
the Appeals Council when it reviews an ALJ’s
decision.
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most claimants receive a decision from
an ALJ.3 An ALJ may hold a hearing and
issue a fully favorable, partially
favorable, or unfavorable decision. An
ALJ may also issue a decision without
holding an oral hearing if the claimant
and any other parties waive their right
to appear at a hearing or if the decision
is fully favorable.
There are two other ways we may
issue a favorable determination or
decision without holding a hearing. A
State disability determination service or
an agency component may issue a fully
or partially favorable revised
determination under the prehearing case
review process in 20 CFR 404.941 and
416.1441. In addition, an attorney
advisor may issue a fully favorable
decision under the attorney advisor
process in 20 CFR 404.942 and
416.1442. These processes help us
adjudicate cases pending at the hearing
level more quickly while preserving
claimants’ right to a hearing before an
ALJ.
Prehearing Case Review
The prehearing case review process
allows us to refer a case back to the
component that issued the
determination under review. That
component decides whether to revise its
determination and issue a fully or
partially favorable revised
determination. We may conduct a
prehearing case review if:
1. We receive additional evidence;
2. There is an indication that
additional evidence is available;
3. There is a change in the law or
regulations; or
4. There is an error in the file or some
other indication that the prior
determination may be revised.
20 CFR 404.941(b), 416.1441(b).
Our current regulations state that if
we issue a fully favorable revised
determination, we notify the claimant
and all other parties that the ALJ will
dismiss the hearing request unless a
party requests that the hearing proceed.
The claimant or other party must make
this request in writing within 30 days
after the date we mail the notice of the
revised determination.
If we issue a partially favorable
revised determination, we notify the
claimant and all other parties that we
will continue with the ALJ hearing
unless the claimant and all other parties
agree to dismiss the hearing request. We
do not specify how the claimant and all
other parties must tell us that they agree
to dismiss this hearing request.
3 An ALJ may also send the case to the Appeals
Council with a recommended decision or dismiss
a request for a hearing. 20 CFR 404.953(c), 404.957,
416.1453(d), and 416.1457.
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Prehearing Decisions by Attorney
Advisors
Attorney advisors in our Office of
Disability Adjudication and Review may
conduct specific prehearing proceedings
and, if appropriate, make fully favorable
decisions based on the record. Attorney
advisors may conduct prehearing
proceedings under circumstances
similar to those under which we
conduct prehearing case reviews. 20
CFR 404.942(b) and 416.1442(b).
Under our current rules, if an attorney
advisor issues a fully favorable decision,
we wait 30 days before we dismiss the
hearing request. We created the 30-day
period to allow a claimant or other party
time to ask us to proceed with the
hearing.
Changes
Our adjudicative experience shows
that claimants who receive a fully
favorable determination or decision
rarely ask us to continue with a hearing.
In fact, claimants may be confused by a
notice dismissing their request for a
hearing several weeks after they
received a fully favorable determination
or decision on their claim. As a result,
we spent administrative resources: (1)
Processing the dismissals of requests for
hearing because we had to wait until the
30-day period ended before we
dismissed the request for a hearing; (2)
answering claimants’ questions; and (3)
explaining what the dismissal notice
meant.
Changing our procedures will both
simplify the administrative review
process and free scarce administrative
resources that we will better use to
reduce the hearings backlog.
Therefore, we are revising the way
claimants can obtain further review of
fully favorable and partially favorable
prehearing case review determinations
and fully favorable attorney advisor
decisions. These changes preserve a
claimant’s right to have an ALJ hearing,
even when we have already issued a
fully favorable determination or
decision.
Whenever a claimant or other party
seeks further review of a favorable
determination or decision, we will
continue to consider the entire case
record including the determination or
decision. Further review of a favorable
determination or decision may result in
a determination or decision that is less
favorable or unfavorable to a claimant.
Revised Procedures for Prehearing Case
Reviews
If we issue a fully favorable revised
determination in the prehearing case
review process, an ALJ will dismiss the
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request for a hearing soon after the
reviewing component issues the fully
favorable determination. The notice
accompanying the ALJ’s order of
dismissal will advise all parties that if
they disagree with the revised
determination, they have 60 days from
the date they receive the notice to
request that the ALJ vacate the
dismissal. The ALJ will extend the 60day time limit if a party making a
request shows that he or she had good
cause for missing the deadline. If a party
timely requests that the ALJ vacate the
dismissal, the ALJ will vacate the
dismissal, reinstate the request for a
hearing, and offer all parties an
opportunity for a hearing.
If we issue a partially favorable
determination in the prehearing case
review process, an ALJ will proceed to
hold a hearing unless all parties to the
hearing tell us in writing that they agree
to dismiss the hearing request. If we
receive a written statement(s) agreeing
to a dismissal before an ALJ mails a
notice of his or her decision, we will
dismiss the request for a hearing.
We include these changes in final
sections 404.941, 404.960, 416.1441,
and 416.1460. In response to a public
comment, we are adopting final
regulatory language that differs from the
language we proposed, as we discuss in
more detail below.
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Revised Procedures for Attorney
Advisor Prehearing Decisions
If an attorney advisor issues a fully
favorable decision, we will consider the
decision to be a hearing-level decision,
and we will not issue a notice of
dismissal of the hearing request. The
notice of the attorney advisor’s decision
will state that if a party to the hearing
disagrees with the attorney advisor’s
decision for any reason, the party must
request that an ALJ reinstate the request
for a hearing within 60 days of the date
he or she receives notice of the decision.
The ALJ will extend the 60-day time
limit if the party making the request
shows that he or she had good cause for
missing the deadline. If a party timely
requests that the ALJ reinstate the
request for a hearing, the ALJ will
reinstate the request for a hearing and
offer all parties to the hearing an
opportunity for a hearing. We will
process the fully favorable attorney
advisor’s decision while the hearing is
pending.
We include these changes in final
sections 404.942 and 416.1442. In
response to a public comment, we are
adopting final regulatory language that
differs from the language we proposed,
as we discuss in more detail below.
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Other Changes
We are changing ‘‘wholly favorable’’
to ‘‘fully favorable’’ in final sections
404.941, 404.948, 416.1441, and
416.1448. We also are making additional
changes for clarity in final sections
404.948, 404.960, 416.1448, and
416.1460. These minor changes will
make the language in these sections
consistent with other related sections
but will not alter their meaning.
Finally, we are rescinding Social
Security Ruling (SSR) 97–2p today in a
separate notice in the Federal Register
because we are incorporating some of
the policies from SSR 97–2p and
revising others in these final rules.
Public Comments
We published a notice of proposed
rulemaking (NPRM) in the Federal
Register on July 22, 2010, and we gave
the public 60 days to comment on the
NPRM. 75 FR 42639. We received one
comment during this period. We
carefully read and considered it. It is
available for public viewing at https://
www.regulations.gov. Because the
comment was long, we have
summarized and paraphrased it. We
have tried to summarize the
commenter’s views accurately and to
respond to the significant issues raised
by the commenter that were within the
scope of these rules.
Comment: The commenter supported
our proposed policy revisions, but
stated that the proposed regulatory text
was not easy enough to understand. The
commenter asserted that the NPRM
violated section 504 of the
Rehabilitation Act of 1973 4 because the
proposed regulatory language was above
the 12th grade reading level and some
of the complex regulatory language was
‘‘not understandable for many
applicants and beneficiaries who have
disabilities.’’ The commenter suggested
that we clarify the regulatory text by
shortening certain sentences and
avoiding long introductory clauses.
Response: We adopted the comment.
We are working to improve the clarity
of our regulations and appreciate the
commenter’s suggestions. In response to
the commenter’s suggestions, we
shortened and reorganized text in final
sections 404.941(d)–(e), 404.942(d),
404.960(a)–(b), 416.1441(d)–(e),
416.1442(d), and 416.1460(a)–(b).
However, we disagree with the
commenter that our proposed rules
would violate section 504 of the
Rehabilitation Act. While section 504
and its implementing regulations
require Federal agencies to
4 29
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communicate effectively with the
public, they do not require Federal
agencies to publish regulations at a
specific reading level.
We are also taking steps to
communicate effectively with claimants
and beneficiaries through our notices
and by other means. We created an
Office of Open Government to improve
the clarity, tone, and readability of
notices to ensure that we communicate
effectively with the public. Each person
to whom these final rules apply will
receive a notice written in accordance
with our notice standards. The notice
will advise him or her of our
determination or decision, of the
options available if he or she wishes
further review of that determination or
decision, and of the time limits that
apply to those options.
Comment: The commenter suggested
that we revise proposed 20 CFR
404.960(a) and 416.1460(a) to clarify
that the Appeals Council will notify the
claimant in writing whether or not it
vacates a dismissal of a request for a
hearing. The commenter stated that the
proposed language in these sections did
not discuss whether the Appeals
Council would notify the claimant if it
did not vacate a dismissal of a request
for a hearing.
Response: We agree with the
commenter that our proposed regulatory
language was unclear on these processes
and are adopting language in final
sections 404.960(a) and 416.1460(a) that
differs from the proposed language.
These sections now clarify that, if the
claimant files a request for review, the
Appeals Council will notify the
claimant about whether it granted or
denied the request to vacate the
dismissal. This final rule will also apply
to ALJs when a claimant asks an ALJ to
vacate a dismissal.
The Appeals Council may also
consider whether to vacate a dismissal
on its own motion- that is, without any
request from a claimant- under 20 CFR
404.969 and 416.1469. We are clarifying
that the Appeals Council will notify a
claimant that it used its own motion
review authority only if it decides to
vacate a dismissal. The Appeals Council
will not notify a claimant when it
decides not to vacate a dismissal based
on own motion review because it is not
taking any action, and the claimant has
not requested the review.
Comment: The commenter suggested
that we be consistent in the manner we
present our standard of good cause.
Specifically, the commenter suggested
that we define ‘‘good cause’’ in
proposed 20 CFR 404.960(a) and
416.1460(a) by referencing our rules in
20 CFR 404.911 and 416.1411. The
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commenter noted that we refer to the
good cause definition in 20 CFR 404.911
and 416.1411 when we mention good
cause in proposed 20 CFR 404.941(d)
and 416.1441(d).
Response: We agree with the
commenter that our proposed regulatory
language could have been clearer.
However, we are not adopting the
comment that we revise the rules to
refer to the good cause criteria in 20
CFR 404.911 and 416.1411. Under our
current policy, we consider each reason
a claimant gives for making a request to
vacate an order of dismissal on its own
merit. Generally, we will vacate the
order of dismissal if the claimant shows
that the premise on which the ALJ or
the Appeals Council based the dismissal
order was erroneous. To clarify that
point and to avoid confusion about the
applicability of the good cause criteria
in sections 404.911 and 416.1411, we
are removing the words ‘‘good cause’’
from final sections 404.960(a) and
416.1460(a). Therefore, under these final
rules, if you wish to request that the ALJ
or the Appeals Council vacate a
dismissal of a request for a hearing, you
must do so within 60 days of the date
you receive notice of the dismissal, and
you must state why our dismissal of the
request for a hearing was erroneous.
This change is consistent with our
current policy and clarifies that we may
vacate a dismissal of a hearing request
when a claimant shows us that the
dismissal order was erroneous.
Comment: The commenter asked us to
revise the regulatory text about how
long a claimant had to request that an
ALJ reinstate a request for a hearing
under proposed 20 CFR 404.941(d),
404.942(d), 416.1441(d), and
416.1442(d). We proposed that a
claimant must respond to us within 60
days after receiving notice of the fully
favorable determination or decision.
The commenter asked that we include a
date certain in our notices for any
required action instead of requiring
claimants to calculate when the 60 days
end. The commenter suggested specific
regulatory language, including that a
claimant ‘‘may add 5 days to the
deadline to allow for mailing time. The
notice will provide the date by which
you must ask.’’
Response: We did not adopt the
commenter’s suggested language. We
state in these final rules that a claimant
who wants an ALJ to reinstate a hearing
request must file his or her request
‘‘within 60 days of the date you receive
notice’’ of the dismissal or decision in
final sections 404.941(d), 404.942(d),
416.1441(d), and 416.1442(d). We use
this approach throughout our
regulations. Our current rules already
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define ‘‘date you receive notice’’ to
mean ‘‘5 days after the date on the
notice, unless you show us that you did
not receive it within the 5-day period’’
in 20 CFR 404.901 and 416.1401.
We did not adopt the suggested
regulatory language to include a ‘‘date
certain’’ by which a claimant must act
based on 5 days for mailing time
because our regulations acknowledge
that a claimant may not receive the
notice within this timeframe. In these
instances, we allow the claimant to
show us that he or she did not actually
receive the notice within 5 days after
the date on the notice.
Comment: The commenter supported
our proposal to specify in proposed 20
CFR 404.941(e) and 416.1441(e) that all
parties to a partially favorable
determination in the prehearing case
review process must make their requests
in writing if they want the ALJ to
dismiss the request for a hearing. The
commenter suggested that we specify
that requests be in writing when parties
appeal fully favorable determinations
and decisions in 20 CFR 404.941(d),
404.942(d), 416.1441(d), and
416.1442(d).
Response: We adopted this comment.
Our prior rules in these sections
required that the requests be in writing,
and this is not a change in our policy.
Regulatory Procedures
Executive Order 12866, as
Supplemented by Executive Order
13563
We consulted with the Office of
Management and Budget (OMB) and
determined that these final rules meet
the criteria for a significant regulatory
action under Executive Order 12866, as
supplemented by Executive Order
13563. Thus, OMB reviewed them.
Regulatory Flexibility Act
We certify that these final rules will
not have a significant economic impact
on a substantial number of small entities
because they only affect individuals.
Therefore, the Regulatory Flexibility
Act, as amended, does not require us to
prepare a regulatory flexibility analysis.
Paperwork Reduction Act
These final rules do not impose any
new reporting or recordkeeping
requirements and are not subject to
OMB clearance.
(Catalog of Federal Domestic Assistance
Program Nos. 96.001, Social Security—
Disability Insurance; 96.002, Social
Security—Retirement Insurance; 96.004,
Social Security—Survivors Insurance;
96.006, Supplemental Security Income)
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65369
List of Subjects
20 CFR Part 404
Administrative practice and
procedure; Blind, Disability benefits;
Old-Age, Survivors, and Disability
Insurance; Reporting and recordkeeping
requirements; Social Security.
20 CFR Part 416
Administrative practice and
procedure; Aged, Blind, Disability
benefits; Public assistance programs;
Reporting and recordkeeping
requirements; Supplemental Security
Income (SSI).
Dated: October 12, 2011.
Michael J. Astrue,
Commissioner of Social Security.
For the reasons set forth in the
preamble, we are amending title 20 of
the Code of Federal Regulations part 404
subpart J and part 416 subpart N as set
forth below:
PART 404—FEDERAL OLD-AGE,
SURVIVORS AND DISABILITY
INSURANCE (1950– )
Subpart J—[Amended]
1. The authority citation for subpart J
of part 404 continues to read as follows:
■
Authority: Secs. 201(j), 204(f), 205(a)–(b),
(d)–(h), and (j), 221, 223(i), 225, and 702(a)(5)
of the Social Security Act (42 U.S.C. 401(j),
404(f), 405(a)–(b), (d)–(h), and (j), 421, 423(i),
425, and 902(a)(5)); sec. 5, Pub. L. 97–455, 96
Stat. 2500 (42 U.S.C. 405 note); secs. 5, 6(c)–
(e), and 15, Pub. L. 98–460, 98 Stat. 1802 (42
U.S.C. 421 note); sec. 202, Pub. L. 108–203,
118 Stat. 509 (42 U.S.C. 902 note).
2. Amend § 404.941 by revising
paragraphs (c), (d), and (e) to read as
follows:
■
§ 404.941
Prehearing case review.
*
*
*
*
*
(c) Notice of a prehearing revised
determination. If we revise the
determination in a prehearing case
review, we will mail a written notice of
the revised determination to all parties
at their last known addresses. We will
state the basis for the revised
determination and advise all parties of
the effect of the revised determination
on the request for a hearing.
(d) Effect of a fully favorable revised
determination. If the revised
determination is fully favorable to you,
we will tell you in the notice that an
administrative law judge will dismiss
the request for a hearing. We will also
tell you that you or another party to the
hearing may request that the
administrative law judge vacate the
dismissal and reinstate the request for a
hearing if you or another party to the
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Federal Register / Vol. 76, No. 204 / Friday, October 21, 2011 / Rules and Regulations
hearing disagrees with the revised
determination for any reason. If you
wish to make this request, you must do
so in writing and send it to us within
60 days of the date you receive notice
of the dismissal. If the request is timely,
an administrative law judge will vacate
the dismissal, reinstate the request for
hearing, and offer you and all parties an
opportunity for a hearing. The
administrative law judge will extend the
time limit if you show that you had
good cause for missing the deadline.
The administrative law judge will use
the standards in § 404.911 to determine
whether you had good cause.
(e) Effect of a partially favorable
revised determination. If the revised
determination is partially favorable to
you, we will tell you in the notice what
was not favorable. We will also tell you
that an administrative law judge will
hold the hearing you requested unless
you and all other parties to the hearing
agree in writing to dismiss the request
for a hearing. An administrative law
judge will dismiss the request for a
hearing if we receive the written
statement(s) agreeing to dismiss the
request for a hearing before an
administrative law judge mails a notice
of his or her hearing decision.
■ 3. Amend § 404.942 by revising
paragraphs (d), (e) introductory text,
(e)(1), and (f)(3) to read as follows:
§ 404.942 Prehearing proceedings and
decisions by attorney advisors.
emcdonald on DSK5VPTVN1PROD with RULES
*
*
*
*
*
(d) Notice of a decision by an attorney
advisor. If an attorney advisor issues a
fully favorable decision under this
section, we will mail a written notice of
the decision to all parties at their last
known addresses. We will state the
basis for the decision and advise all
parties that they may request that an
administrative law judge reinstate the
request for a hearing if they disagree
with the decision for any reason. Any
party who wants to make this request
must do so in writing and send it to us
within 60 days of the date he or she
receives notice of the decision. The
administrative law judge will extend the
time limit if the requestor shows good
cause for missing the deadline. The
administrative law judge will use the
standards in § 404.911 to determine
whether there is good cause. If the
request is timely, an administrative law
judge will reinstate the request for a
hearing and offer all parties an
opportunity for a hearing.
(e) Effect of an attorney advisor’s
decision. An attorney advisor’s decision
under this section is binding unless—
(1) You or another party to the hearing
submits a timely request that an
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16:58 Oct 20, 2011
Jkt 226001
administrative law judge reinstate the
request for a hearing under paragraph
(d) of this section;
*
*
*
*
*
(f) * * *
(3) Make the decision of an attorney
advisor under paragraph (d) of this
section subject to review by the Appeals
Council if the Appeals Council decides
to review the decision of the attorney
advisor anytime within 60 days after the
date of the decision under § 404.969.
*
*
*
*
*
■ 4. Amend § 404.948 by revising the
second sentence of paragraph (a), and
paragraph (b)(1)(ii), to read as follows:
§ 404.948 Deciding a case without an oral
hearing before an administrative law judge.
(a) Decision fully favorable. * * *
The notice of the decision will state that
you have the right to an oral hearing and
to examine the evidence on which the
administrative law judge based the
decision.
(b) * * *
(1) * * *
(ii) You live outside the United States,
you do not inform us that you wish to
appear, and there are no other parties
who wish to appear.
*
*
*
*
*
■ 5. Revise § 404.960 to read as follows:
§ 404.960 Vacating a dismissal of a
request for a hearing before an
administrative law judge.
(a) Except as provided in paragraph
(b) of this section, an administrative law
judge or the Appeals Council may
vacate a dismissal of a request for a
hearing if you request that we vacate the
dismissal. If you or another party wish
to make this request, you must do so
within 60 days of the date you receive
notice of the dismissal, and you must
state why our dismissal of your request
for a hearing was erroneous. The
administrative law judge or Appeals
Council will inform you in writing of
the action taken on your request. The
Appeals Council may also vacate a
dismissal of a request for a hearing on
its own motion. If the Appeals Council
decides to vacate a dismissal on its own
motion, it will do so within 60 days of
the date we mail the notice of dismissal
and will inform you in writing that it
vacated the dismissal.
(b) If you wish to proceed with a
hearing after you received a fully
favorable revised determination under
the prehearing case review process in
§ 404.941, you must follow the
procedures in § 404.941(d) to request
that an administrative law judge vacate
his or her order dismissing your request
for a hearing.
PO 00000
Frm 00014
Fmt 4700
Sfmt 4700
PART 416—SUPPLEMENTAL
SECURITY INCOME FOR THE AGED,
BLIND, AND DISABLED
Subpart N—[Amended]
6. 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); sec. 202, Pub. L.
108–203, 118 Stat. 509 (42 U.S.C. 902 note).
7. Amend § 416.1441 by revising
paragraphs (c), (d), and (e) to read as
follows:
■
§ 416.1441
Prehearing case review.
*
*
*
*
*
(c) Notice of a prehearing revised
determination. If we revise the
determination in a prehearing case
review, we will mail a written notice of
the revised determination to all parties
at their last known addresses. We will
state the basis for the revised
determination and advise all parties of
the effect of the revised determination
on the request for a hearing.
(d) Effect of a fully favorable revised
determination. If the revised
determination is fully favorable to you,
we will tell you in the notice that an
administrative law judge will dismiss
the request for a hearing. We will also
tell you that you or another party to the
hearing may request that the
administrative law judge vacate the
dismissal and reinstate the request for a
hearing if you or another party to the
hearing disagrees with the revised
determination for any reason. If you
wish to make this request, you must do
so in writing and send it to us within
60 days of the date you receive notice
of the dismissal. If the request is timely,
an administrative law judge will vacate
the dismissal, reinstate the request for a
hearing, and offer you and all parties an
opportunity for a hearing. The
administrative law judge will extend the
time limit if you show that you had
good cause for missing the deadline.
The administrative law judge will use
the standards in § 416.1411 to determine
whether you had good cause.
(e) Effect of a partially favorable
revised determination. If the revised
determination is partially favorable to
you, we will tell you in the notice what
was not favorable. We will also tell you
that an administrative law judge will
hold the hearing you requested unless
you and all other parties to the hearing
agree in writing to dismiss the request
for a hearing. An administrative law
judge will dismiss the request for a
hearing if we receive the written
statement(s) agreeing to dismiss the
request for a hearing before an
E:\FR\FM\21OCR1.SGM
21OCR1
Federal Register / Vol. 76, No. 204 / Friday, October 21, 2011 / Rules and Regulations
administrative law judge mails a notice
of his or her hearing decision.
■ 8. Amend § 416.1442 by revising
paragraphs (d), (e) introductory text,
(e)(1), and (f)(3) to read as follows:
appear, and there are no other parties
who wish to appear.
*
*
*
*
*
■ 10. Revise § 416.1460 to read as
follows:
§ 416.1442 Prehearing proceedings and
decisions by attorney advisors.
§ 416.1460 Vacating a dismissal of a
request for a hearing before an
administrative law judge.
*
*
*
*
*
(d) Notice of a decision by an attorney
advisor. If an attorney advisor issues a
fully favorable decision under this
section, we will mail a written notice of
the decision to all parties at their last
known addresses. We will state the
basis for the decision and advise all
parties that they may request that an
administrative law judge reinstate the
request for a hearing if they disagree
with the decision for any reason. Any
party who wants to make this request
must do so in writing and send it to us
within 60 days of the date he or she
receives notice of the decision. The
administrative law judge will extend the
time limit if the requestor shows good
cause for missing the deadline. The
administrative law judge will use the
standards in § 416.1411 to determine
whether there is good cause. If the
request is timely, an administrative law
judge will reinstate the request for a
hearing and offer all parties an
opportunity for a hearing.
(e) Effect of an attorney advisor’s
decision. An attorney advisor’s decision
under this section is binding unless—
(1) You or another party to the hearing
submits a timely request that an
administrative law judge reinstate the
request for a hearing under paragraph
(d) of this section;
*
*
*
*
*
(f) * * *
(3) Make the decision of an attorney
advisor under paragraph (d) of this
section subject to review by the Appeals
Council if the Appeals Council decides
to review the decision of the attorney
advisor anytime within 60 days after the
date of the decision under § 416.1469.
*
*
*
*
*
■ 9. Amend § 416.1448 by revising the
second sentence of paragraph (a), and
paragraph (b)(1)(ii), to read as follows:
emcdonald on DSK5VPTVN1PROD with RULES
§ 416.1448 Deciding a case without an oral
hearing before an administrative law judge.
(a) Decision fully favorable. * * *
The notice of the decision will state that
you have the right to an oral hearing and
to examine the evidence on which the
administrative law judge based the
decision.
(b) * * *
(1) * * *
(ii) You live outside the United States,
you do not inform us that you wish to
VerDate Mar<15>2010
16:58 Oct 20, 2011
Jkt 226001
(a) Except as provided in paragraph
(b) of this section, an administrative law
judge or the Appeals Council may
vacate a dismissal of a request for a
hearing if you request that we vacate the
dismissal. If you or another party wish
to make this request, you must do so
within 60 days of the date you receive
notice of the dismissal, and you must
state why our dismissal of your request
for a hearing was erroneous. The
administrative law judge or Appeals
Council will inform you in writing of
the action taken on your request. The
Appeals Council may also vacate a
dismissal of a request for a hearing on
its own motion. If the Appeals Council
decides to vacate a dismissal on its own
motion, it will do so within 60 days of
the date we mail the notice of dismissal
and will inform you in writing that it
vacated the dismissal.
(b) If you wish to proceed with a
hearing after you received a fully
favorable revised determination under
the prehearing case review process in
§ 416.1441, you must follow the
procedures in § 416.1441(d) to request
that an administrative law judge vacate
his or her order dismissing your request
for a hearing.
[FR Doc. 2011–27236 Filed 10–20–11; 8:45 am]
BILLING CODE 4191–02–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
21 CFR Part 1308
[Docket No. DEA–357]
Schedules of Controlled Substances:
Temporary Placement of Three
Synthetic Cathinones Into Schedule I
Drug Enforcement
Administration, Department of Justice.
ACTION: Final Order.
AGENCY:
The Administrator of the Drug
Enforcement Administration (DEA) is
issuing this final order to temporarily
schedule three synthetic cathinones
under the Controlled Substances Act
(CSA) pursuant to the temporary
scheduling provisions of 21 U.S.C.
811(h). The substances are 4-methyl-Nmethylcathinone (mephedrone), 3,4-
SUMMARY:
PO 00000
Frm 00015
Fmt 4700
Sfmt 4700
65371
methylenedioxy-N-methylcathinone
(methylone), and 3,4methylenedioxypyrovalerone (MDPV).
This action is based on a finding by the
Administrator that the placement of
these synthetic cathinones and their
salts, isomers, and salts of isomers into
Schedule I of the CSA is necessary to
avoid an imminent hazard to the public
safety. As a result of this order, the full
effect of the CSA and its implementing
regulations including criminal, civil and
administrative penalties, sanctions and
regulatory controls of Schedule I
substances will be imposed on the
manufacture, distribution, possession,
importation, and exportation of these
synthetic cathinones.
DATES: Effective Date: This Final Order
is effective on October 21, 2011.
FOR FURTHER INFORMATION CONTACT:
Imelda L. Paredes, Office of Diversion
Control, Drug Enforcement
Administration, 8701 Morrissette Drive,
Springfield, Virginia 22152; Telephone
(202) 307–7165.
SUPPLEMENTARY INFORMATION:
Background
The Comprehensive Crime Control
Act of 1984 (Pub. L. 98–473), which was
signed into law on October 12, 1984,
amended section 201 of the CSA (21
U.S.C. 811) to give the Attorney General
the authority to temporarily place a
substance into Schedule I of the CSA for
one year without regard to the
requirements of 21 U.S.C. 811(b) if he
finds that such action is necessary to
avoid imminent hazard to the public
safety. 21 U.S.C. 811(h); 21 CFR
1308.49. If proceedings to control a
substance are initiated under 21 U.S.C.
811(a)(1), the Attorney General may
extend the temporary scheduling up to
an additional six months. 21 U.S.C.
811(h)(2). Where the necessary findings
are made, a substance may be
temporarily scheduled in Schedule I if
it is not listed in any other schedule
under section 202 of the CSA (21 U.S.C.
812) or if there is no exemption or
approval in effect under section 505 of
the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 355) for the substance. 21
U.S.C. 811(h)(1). The Attorney General
has delegated his authority under 21
U.S.C. 811 to the Administrator of DEA.
28 CFR 0.100.
Section 201(h)(4) of the CSA (21
U.S.C. 811(h)(4)) requires the
Administrator to notify the Secretary of
Health and Human Services of her
intention to temporarily place a
substance into Schedule I of the CSA.1
1 Because the Secretary of Health and Human
Services has delegated to the Assistant Secretary for
E:\FR\FM\21OCR1.SGM
Continued
21OCR1
]]>Agencies
[Federal Register Volume 76, Number 204 (Friday, October 21, 2011)]
[Rules and Regulations]
[Pages 65366-65371]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-27236]
=======================================================================
-----------------------------------------------------------------------
SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
[Docket No. SSA-2007-0092]
RIN 0960-AG72
Amendments to Procedures for Certain Determinations and Decisions
AGENCY: Social Security Administration.
ACTION: Final Rules.
-----------------------------------------------------------------------
SUMMARY: We are revising the procedures for how claimants who receive
fully favorable revised determinations based on prehearing case reviews
or fully favorable attorney advisor decisions may seek further
[[Page 65367]]
review. We are also revising our procedure to provide that we will
notify claimants who receive partially favorable determinations based
on prehearing case reviews that an administrative law judge (ALJ) will
still hold a hearing unless all parties to the hearing tell us in
writing that we should dismiss the hearing request. These changes will
simplify our administrative review process and free up scarce
administrative resources that we can better use to reduce the hearings-
level case backlog.
DATES: These final rules are effective on November 21, 2011.
FOR FURTHER INFORMATION CONTACT: Joshua Silverman, Office of
Regulations, Social Security Administration, 6401 Security Boulevard,
Baltimore, MD 21235-6401, (410) 594-2128. For information on
eligibility or filing for benefits, call our national toll-free number,
1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site,
Social Security Online, at https://www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION:
Background
In most cases, we decide claims for benefits using an
administrative review process that consists of four levels: initial
determination, reconsideration, hearing, and appeal. 20 CFR 404.900 and
416.1400. We make an initial determination at the first level. A
claimant who is dissatisfied with the initial determination may request
reconsideration.\1\ A claimant dissatisfied with the reconsidered
determination may request a hearing before an ALJ. Finally, if
dissatisfied with the ALJ's decision, a claimant may request that the
Appeals Council review that decision.\2\ After a claimant has completed
these administrative steps and received our final decision, he or she
may request judicial review of the final decision in Federal district
court.
---------------------------------------------------------------------------
\1\ For disability claims, ten States participate in a
``prototype'' test under 20 CFR 404.906 and 416.1406. In these
States, we eliminated the reconsideration step of the administrative
review process. Claimants and other parties who are dissatisfied
with the initial determinations on their disability cases may
request a hearing before an ALJ. The ten States are: Alabama,
Alaska, California (Los Angeles North and West Branches), Colorado,
Louisiana, Michigan, Missouri, New Hampshire, New York, and
Pennsylvania.
\2\ We define the words ``determination'' and ``decision'' in 20
CFR 404.901 and 416.1401. At the initial and reconsideration levels
of the administrative review process, we issue ``determinations.''
ALJs issue ``decisions,'' as may the Appeals Council when it reviews
an ALJ's decision.
---------------------------------------------------------------------------
We handle requests for ALJ hearings in several ways. At the hearing
level, most claimants receive a decision from an ALJ.\3\ An ALJ may
hold a hearing and issue a fully favorable, partially favorable, or
unfavorable decision. An ALJ may also issue a decision without holding
an oral hearing if the claimant and any other parties waive their right
to appear at a hearing or if the decision is fully favorable.
---------------------------------------------------------------------------
\3\ An ALJ may also send the case to the Appeals Council with a
recommended decision or dismiss a request for a hearing. 20 CFR
404.953(c), 404.957, 416.1453(d), and 416.1457.
---------------------------------------------------------------------------
There are two other ways we may issue a favorable determination or
decision without holding a hearing. A State disability determination
service or an agency component may issue a fully or partially favorable
revised determination under the prehearing case review process in 20
CFR 404.941 and 416.1441. In addition, an attorney advisor may issue a
fully favorable decision under the attorney advisor process in 20 CFR
404.942 and 416.1442. These processes help us adjudicate cases pending
at the hearing level more quickly while preserving claimants' right to
a hearing before an ALJ.
Prehearing Case Review
The prehearing case review process allows us to refer a case back
to the component that issued the determination under review. That
component decides whether to revise its determination and issue a fully
or partially favorable revised determination. We may conduct a
prehearing case review if:
1. We receive additional evidence;
2. There is an indication that additional evidence is available;
3. There is a change in the law or regulations; or
4. There is an error in the file or some other indication that the
prior determination may be revised.
20 CFR 404.941(b), 416.1441(b).
Our current regulations state that if we issue a fully favorable
revised determination, we notify the claimant and all other parties
that the ALJ will dismiss the hearing request unless a party requests
that the hearing proceed. The claimant or other party must make this
request in writing within 30 days after the date we mail the notice of
the revised determination.
If we issue a partially favorable revised determination, we notify
the claimant and all other parties that we will continue with the ALJ
hearing unless the claimant and all other parties agree to dismiss the
hearing request. We do not specify how the claimant and all other
parties must tell us that they agree to dismiss this hearing request.
Prehearing Decisions by Attorney Advisors
Attorney advisors in our Office of Disability Adjudication and
Review may conduct specific prehearing proceedings and, if appropriate,
make fully favorable decisions based on the record. Attorney advisors
may conduct prehearing proceedings under circumstances similar to those
under which we conduct prehearing case reviews. 20 CFR 404.942(b) and
416.1442(b).
Under our current rules, if an attorney advisor issues a fully
favorable decision, we wait 30 days before we dismiss the hearing
request. We created the 30-day period to allow a claimant or other
party time to ask us to proceed with the hearing.
Changes
Our adjudicative experience shows that claimants who receive a
fully favorable determination or decision rarely ask us to continue
with a hearing. In fact, claimants may be confused by a notice
dismissing their request for a hearing several weeks after they
received a fully favorable determination or decision on their claim. As
a result, we spent administrative resources: (1) Processing the
dismissals of requests for hearing because we had to wait until the 30-
day period ended before we dismissed the request for a hearing; (2)
answering claimants' questions; and (3) explaining what the dismissal
notice meant.
Changing our procedures will both simplify the administrative
review process and free scarce administrative resources that we will
better use to reduce the hearings backlog.
Therefore, we are revising the way claimants can obtain further
review of fully favorable and partially favorable prehearing case
review determinations and fully favorable attorney advisor decisions.
These changes preserve a claimant's right to have an ALJ hearing, even
when we have already issued a fully favorable determination or
decision.
Whenever a claimant or other party seeks further review of a
favorable determination or decision, we will continue to consider the
entire case record including the determination or decision. Further
review of a favorable determination or decision may result in a
determination or decision that is less favorable or unfavorable to a
claimant.
Revised Procedures for Prehearing Case Reviews
If we issue a fully favorable revised determination in the
prehearing case review process, an ALJ will dismiss the
[[Page 65368]]
request for a hearing soon after the reviewing component issues the
fully favorable determination. The notice accompanying the ALJ's order
of dismissal will advise all parties that if they disagree with the
revised determination, they have 60 days from the date they receive the
notice to request that the ALJ vacate the dismissal. The ALJ will
extend the 60-day time limit if a party making a request shows that he
or she had good cause for missing the deadline. If a party timely
requests that the ALJ vacate the dismissal, the ALJ will vacate the
dismissal, reinstate the request for a hearing, and offer all parties
an opportunity for a hearing.
If we issue a partially favorable determination in the prehearing
case review process, an ALJ will proceed to hold a hearing unless all
parties to the hearing tell us in writing that they agree to dismiss
the hearing request. If we receive a written statement(s) agreeing to a
dismissal before an ALJ mails a notice of his or her decision, we will
dismiss the request for a hearing.
We include these changes in final sections 404.941, 404.960,
416.1441, and 416.1460. In response to a public comment, we are
adopting final regulatory language that differs from the language we
proposed, as we discuss in more detail below.
Revised Procedures for Attorney Advisor Prehearing Decisions
If an attorney advisor issues a fully favorable decision, we will
consider the decision to be a hearing-level decision, and we will not
issue a notice of dismissal of the hearing request. The notice of the
attorney advisor's decision will state that if a party to the hearing
disagrees with the attorney advisor's decision for any reason, the
party must request that an ALJ reinstate the request for a hearing
within 60 days of the date he or she receives notice of the decision.
The ALJ will extend the 60-day time limit if the party making the
request shows that he or she had good cause for missing the deadline.
If a party timely requests that the ALJ reinstate the request for a
hearing, the ALJ will reinstate the request for a hearing and offer all
parties to the hearing an opportunity for a hearing. We will process
the fully favorable attorney advisor's decision while the hearing is
pending.
We include these changes in final sections 404.942 and 416.1442. In
response to a public comment, we are adopting final regulatory language
that differs from the language we proposed, as we discuss in more
detail below.
Other Changes
We are changing ``wholly favorable'' to ``fully favorable'' in
final sections 404.941, 404.948, 416.1441, and 416.1448. We also are
making additional changes for clarity in final sections 404.948,
404.960, 416.1448, and 416.1460. These minor changes will make the
language in these sections consistent with other related sections but
will not alter their meaning.
Finally, we are rescinding Social Security Ruling (SSR) 97-2p today
in a separate notice in the Federal Register because we are
incorporating some of the policies from SSR 97-2p and revising others
in these final rules.
Public Comments
We published a notice of proposed rulemaking (NPRM) in the Federal
Register on July 22, 2010, and we gave the public 60 days to comment on
the NPRM. 75 FR 42639. We received one comment during this period. We
carefully read and considered it. It is available for public viewing at
https://www.regulations.gov. Because the comment was long, we have
summarized and paraphrased it. We have tried to summarize the
commenter's views accurately and to respond to the significant issues
raised by the commenter that were within the scope of these rules.
Comment: The commenter supported our proposed policy revisions, but
stated that the proposed regulatory text was not easy enough to
understand. The commenter asserted that the NPRM violated section 504
of the Rehabilitation Act of 1973 \4\ because the proposed regulatory
language was above the 12th grade reading level and some of the complex
regulatory language was ``not understandable for many applicants and
beneficiaries who have disabilities.'' The commenter suggested that we
clarify the regulatory text by shortening certain sentences and
avoiding long introductory clauses.
---------------------------------------------------------------------------
\4\ 29 U.S.C. 794.
---------------------------------------------------------------------------
Response: We adopted the comment. We are working to improve the
clarity of our regulations and appreciate the commenter's suggestions.
In response to the commenter's suggestions, we shortened and
reorganized text in final sections 404.941(d)-(e), 404.942(d),
404.960(a)-(b), 416.1441(d)-(e), 416.1442(d), and 416.1460(a)-(b).
However, we disagree with the commenter that our proposed rules
would violate section 504 of the Rehabilitation Act. While section 504
and its implementing regulations require Federal agencies to
communicate effectively with the public, they do not require Federal
agencies to publish regulations at a specific reading level.
We are also taking steps to communicate effectively with claimants
and beneficiaries through our notices and by other means. We created an
Office of Open Government to improve the clarity, tone, and readability
of notices to ensure that we communicate effectively with the public.
Each person to whom these final rules apply will receive a notice
written in accordance with our notice standards. The notice will advise
him or her of our determination or decision, of the options available
if he or she wishes further review of that determination or decision,
and of the time limits that apply to those options.
Comment: The commenter suggested that we revise proposed 20 CFR
404.960(a) and 416.1460(a) to clarify that the Appeals Council will
notify the claimant in writing whether or not it vacates a dismissal of
a request for a hearing. The commenter stated that the proposed
language in these sections did not discuss whether the Appeals Council
would notify the claimant if it did not vacate a dismissal of a request
for a hearing.
Response: We agree with the commenter that our proposed regulatory
language was unclear on these processes and are adopting language in
final sections 404.960(a) and 416.1460(a) that differs from the
proposed language. These sections now clarify that, if the claimant
files a request for review, the Appeals Council will notify the
claimant about whether it granted or denied the request to vacate the
dismissal. This final rule will also apply to ALJs when a claimant asks
an ALJ to vacate a dismissal.
The Appeals Council may also consider whether to vacate a dismissal
on its own motion- that is, without any request from a claimant- under
20 CFR 404.969 and 416.1469. We are clarifying that the Appeals Council
will notify a claimant that it used its own motion review authority
only if it decides to vacate a dismissal. The Appeals Council will not
notify a claimant when it decides not to vacate a dismissal based on
own motion review because it is not taking any action, and the claimant
has not requested the review.
Comment: The commenter suggested that we be consistent in the
manner we present our standard of good cause. Specifically, the
commenter suggested that we define ``good cause'' in proposed 20 CFR
404.960(a) and 416.1460(a) by referencing our rules in 20 CFR 404.911
and 416.1411. The
[[Page 65369]]
commenter noted that we refer to the good cause definition in 20 CFR
404.911 and 416.1411 when we mention good cause in proposed 20 CFR
404.941(d) and 416.1441(d).
Response: We agree with the commenter that our proposed regulatory
language could have been clearer. However, we are not adopting the
comment that we revise the rules to refer to the good cause criteria in
20 CFR 404.911 and 416.1411. Under our current policy, we consider each
reason a claimant gives for making a request to vacate an order of
dismissal on its own merit. Generally, we will vacate the order of
dismissal if the claimant shows that the premise on which the ALJ or
the Appeals Council based the dismissal order was erroneous. To clarify
that point and to avoid confusion about the applicability of the good
cause criteria in sections 404.911 and 416.1411, we are removing the
words ``good cause'' from final sections 404.960(a) and 416.1460(a).
Therefore, under these final rules, if you wish to request that the ALJ
or the Appeals Council vacate a dismissal of a request for a hearing,
you must do so within 60 days of the date you receive notice of the
dismissal, and you must state why our dismissal of the request for a
hearing was erroneous. This change is consistent with our current
policy and clarifies that we may vacate a dismissal of a hearing
request when a claimant shows us that the dismissal order was
erroneous.
Comment: The commenter asked us to revise the regulatory text about
how long a claimant had to request that an ALJ reinstate a request for
a hearing under proposed 20 CFR 404.941(d), 404.942(d), 416.1441(d),
and 416.1442(d). We proposed that a claimant must respond to us within
60 days after receiving notice of the fully favorable determination or
decision. The commenter asked that we include a date certain in our
notices for any required action instead of requiring claimants to
calculate when the 60 days end. The commenter suggested specific
regulatory language, including that a claimant ``may add 5 days to the
deadline to allow for mailing time. The notice will provide the date by
which you must ask.''
Response: We did not adopt the commenter's suggested language. We
state in these final rules that a claimant who wants an ALJ to
reinstate a hearing request must file his or her request ``within 60
days of the date you receive notice'' of the dismissal or decision in
final sections 404.941(d), 404.942(d), 416.1441(d), and 416.1442(d). We
use this approach throughout our regulations. Our current rules already
define ``date you receive notice'' to mean ``5 days after the date on
the notice, unless you show us that you did not receive it within the
5-day period'' in 20 CFR 404.901 and 416.1401.
We did not adopt the suggested regulatory language to include a
``date certain'' by which a claimant must act based on 5 days for
mailing time because our regulations acknowledge that a claimant may
not receive the notice within this timeframe. In these instances, we
allow the claimant to show us that he or she did not actually receive
the notice within 5 days after the date on the notice.
Comment: The commenter supported our proposal to specify in
proposed 20 CFR 404.941(e) and 416.1441(e) that all parties to a
partially favorable determination in the prehearing case review process
must make their requests in writing if they want the ALJ to dismiss the
request for a hearing. The commenter suggested that we specify that
requests be in writing when parties appeal fully favorable
determinations and decisions in 20 CFR 404.941(d), 404.942(d),
416.1441(d), and 416.1442(d).
Response: We adopted this comment. Our prior rules in these
sections required that the requests be in writing, and this is not a
change in our policy.
Regulatory Procedures
Executive Order 12866, as Supplemented by Executive Order 13563
We consulted with the Office of Management and Budget (OMB) and
determined that these final rules meet the criteria for a significant
regulatory action under Executive Order 12866, as supplemented by
Executive Order 13563. Thus, OMB reviewed them.
Regulatory Flexibility Act
We certify that these final rules will not have a significant
economic impact on a substantial number of small entities because they
only affect individuals. Therefore, the Regulatory Flexibility Act, as
amended, does not require us to prepare a regulatory flexibility
analysis.
Paperwork Reduction Act
These final rules do not impose any new reporting or recordkeeping
requirements and are not subject to OMB clearance.
(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
Security--Disability Insurance; 96.002, Social Security--Retirement
Insurance; 96.004, Social Security--Survivors Insurance; 96.006,
Supplemental Security Income)
List of Subjects
20 CFR Part 404
Administrative practice and procedure; Blind, Disability benefits;
Old-Age, Survivors, and Disability Insurance; Reporting and
recordkeeping requirements; Social Security.
20 CFR Part 416
Administrative practice and procedure; Aged, Blind, Disability
benefits; Public assistance programs; Reporting and recordkeeping
requirements; Supplemental Security Income (SSI).
Dated: October 12, 2011.
Michael J. Astrue,
Commissioner of Social Security.
For the reasons set forth in the preamble, we are amending title 20
of the Code of Federal Regulations part 404 subpart J and part 416
subpart N as set forth below:
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950- )
Subpart J--[Amended]
0
1. The authority citation for subpart J of part 404 continues to read
as follows:
Authority: Secs. 201(j), 204(f), 205(a)-(b), (d)-(h), and (j),
221, 223(i), 225, and 702(a)(5) of the Social Security Act (42
U.S.C. 401(j), 404(f), 405(a)-(b), (d)-(h), and (j), 421, 423(i),
425, and 902(a)(5)); sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42
U.S.C. 405 note); secs. 5, 6(c)-(e), and 15, Pub. L. 98-460, 98
Stat. 1802 (42 U.S.C. 421 note); sec. 202, Pub. L. 108-203, 118
Stat. 509 (42 U.S.C. 902 note).
0
2. Amend Sec. 404.941 by revising paragraphs (c), (d), and (e) to read
as follows:
Sec. 404.941 Prehearing case review.
* * * * *
(c) Notice of a prehearing revised determination. If we revise the
determination in a prehearing case review, we will mail a written
notice of the revised determination to all parties at their last known
addresses. We will state the basis for the revised determination and
advise all parties of the effect of the revised determination on the
request for a hearing.
(d) Effect of a fully favorable revised determination. If the
revised determination is fully favorable to you, we will tell you in
the notice that an administrative law judge will dismiss the request
for a hearing. We will also tell you that you or another party to the
hearing may request that the administrative law judge vacate the
dismissal and reinstate the request for a hearing if you or another
party to the
[[Page 65370]]
hearing disagrees with the revised determination for any reason. If you
wish to make this request, you must do so in writing and send it to us
within 60 days of the date you receive notice of the dismissal. If the
request is timely, an administrative law judge will vacate the
dismissal, reinstate the request for hearing, and offer you and all
parties an opportunity for a hearing. The administrative law judge will
extend the time limit if you show that you had good cause for missing
the deadline. The administrative law judge will use the standards in
Sec. 404.911 to determine whether you had good cause.
(e) Effect of a partially favorable revised determination. If the
revised determination is partially favorable to you, we will tell you
in the notice what was not favorable. We will also tell you that an
administrative law judge will hold the hearing you requested unless you
and all other parties to the hearing agree in writing to dismiss the
request for a hearing. An administrative law judge will dismiss the
request for a hearing if we receive the written statement(s) agreeing
to dismiss the request for a hearing before an administrative law judge
mails a notice of his or her hearing decision.
0
3. Amend Sec. 404.942 by revising paragraphs (d), (e) introductory
text, (e)(1), and (f)(3) to read as follows:
Sec. 404.942 Prehearing proceedings and decisions by attorney
advisors.
* * * * *
(d) Notice of a decision by an attorney advisor. If an attorney
advisor issues a fully favorable decision under this section, we will
mail a written notice of the decision to all parties at their last
known addresses. We will state the basis for the decision and advise
all parties that they may request that an administrative law judge
reinstate the request for a hearing if they disagree with the decision
for any reason. Any party who wants to make this request must do so in
writing and send it to us within 60 days of the date he or she receives
notice of the decision. The administrative law judge will extend the
time limit if the requestor shows good cause for missing the deadline.
The administrative law judge will use the standards in Sec. 404.911 to
determine whether there is good cause. If the request is timely, an
administrative law judge will reinstate the request for a hearing and
offer all parties an opportunity for a hearing.
(e) Effect of an attorney advisor's decision. An attorney advisor's
decision under this section is binding unless--
(1) You or another party to the hearing submits a timely request
that an administrative law judge reinstate the request for a hearing
under paragraph (d) of this section;
* * * * *
(f) * * *
(3) Make the decision of an attorney advisor under paragraph (d) of
this section subject to review by the Appeals Council if the Appeals
Council decides to review the decision of the attorney advisor anytime
within 60 days after the date of the decision under Sec. 404.969.
* * * * *
0
4. Amend Sec. 404.948 by revising the second sentence of paragraph
(a), and paragraph (b)(1)(ii), to read as follows:
Sec. 404.948 Deciding a case without an oral hearing before an
administrative law judge.
(a) Decision fully favorable. * * * The notice of the decision will
state that you have the right to an oral hearing and to examine the
evidence on which the administrative law judge based the decision.
(b) * * *
(1) * * *
(ii) You live outside the United States, you do not inform us that
you wish to appear, and there are no other parties who wish to appear.
* * * * *
0
5. Revise Sec. 404.960 to read as follows:
Sec. 404.960 Vacating a dismissal of a request for a hearing before
an administrative law judge.
(a) Except as provided in paragraph (b) of this section, an
administrative law judge or the Appeals Council may vacate a dismissal
of a request for a hearing if you request that we vacate the dismissal.
If you or another party wish to make this request, you must do so
within 60 days of the date you receive notice of the dismissal, and you
must state why our dismissal of your request for a hearing was
erroneous. The administrative law judge or Appeals Council will inform
you in writing of the action taken on your request. The Appeals Council
may also vacate a dismissal of a request for a hearing on its own
motion. If the Appeals Council decides to vacate a dismissal on its own
motion, it will do so within 60 days of the date we mail the notice of
dismissal and will inform you in writing that it vacated the dismissal.
(b) If you wish to proceed with a hearing after you received a
fully favorable revised determination under the prehearing case review
process in Sec. 404.941, you must follow the procedures in Sec.
404.941(d) to request that an administrative law judge vacate his or
her order dismissing your request for a hearing.
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart N--[Amended]
0
6. 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); sec. 202, Pub.
L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).
0
7. Amend Sec. 416.1441 by revising paragraphs (c), (d), and (e) to
read as follows:
Sec. 416.1441 Prehearing case review.
* * * * *
(c) Notice of a prehearing revised determination. If we revise the
determination in a prehearing case review, we will mail a written
notice of the revised determination to all parties at their last known
addresses. We will state the basis for the revised determination and
advise all parties of the effect of the revised determination on the
request for a hearing.
(d) Effect of a fully favorable revised determination. If the
revised determination is fully favorable to you, we will tell you in
the notice that an administrative law judge will dismiss the request
for a hearing. We will also tell you that you or another party to the
hearing may request that the administrative law judge vacate the
dismissal and reinstate the request for a hearing if you or another
party to the hearing disagrees with the revised determination for any
reason. If you wish to make this request, you must do so in writing and
send it to us within 60 days of the date you receive notice of the
dismissal. If the request is timely, an administrative law judge will
vacate the dismissal, reinstate the request for a hearing, and offer
you and all parties an opportunity for a hearing. The administrative
law judge will extend the time limit if you show that you had good
cause for missing the deadline. The administrative law judge will use
the standards in Sec. 416.1411 to determine whether you had good
cause.
(e) Effect of a partially favorable revised determination. If the
revised determination is partially favorable to you, we will tell you
in the notice what was not favorable. We will also tell you that an
administrative law judge will hold the hearing you requested unless you
and all other parties to the hearing agree in writing to dismiss the
request for a hearing. An administrative law judge will dismiss the
request for a hearing if we receive the written statement(s) agreeing
to dismiss the request for a hearing before an
[[Page 65371]]
administrative law judge mails a notice of his or her hearing decision.
0
8. Amend Sec. 416.1442 by revising paragraphs (d), (e) introductory
text, (e)(1), and (f)(3) to read as follows:
Sec. 416.1442 Prehearing proceedings and decisions by attorney
advisors.
* * * * *
(d) Notice of a decision by an attorney advisor. If an attorney
advisor issues a fully favorable decision under this section, we will
mail a written notice of the decision to all parties at their last
known addresses. We will state the basis for the decision and advise
all parties that they may request that an administrative law judge
reinstate the request for a hearing if they disagree with the decision
for any reason. Any party who wants to make this request must do so in
writing and send it to us within 60 days of the date he or she receives
notice of the decision. The administrative law judge will extend the
time limit if the requestor shows good cause for missing the deadline.
The administrative law judge will use the standards in Sec. 416.1411
to determine whether there is good cause. If the request is timely, an
administrative law judge will reinstate the request for a hearing and
offer all parties an opportunity for a hearing.
(e) Effect of an attorney advisor's decision. An attorney advisor's
decision under this section is binding unless--
(1) You or another party to the hearing submits a timely request
that an administrative law judge reinstate the request for a hearing
under paragraph (d) of this section;
* * * * *
(f) * * *
(3) Make the decision of an attorney advisor under paragraph (d) of
this section subject to review by the Appeals Council if the Appeals
Council decides to review the decision of the attorney advisor anytime
within 60 days after the date of the decision under Sec. 416.1469.
* * * * *
0
9. Amend Sec. 416.1448 by revising the second sentence of paragraph
(a), and paragraph (b)(1)(ii), to read as follows:
Sec. 416.1448 Deciding a case without an oral hearing before an
administrative law judge.
(a) Decision fully favorable. * * * The notice of the decision will
state that you have the right to an oral hearing and to examine the
evidence on which the administrative law judge based the decision.
(b) * * *
(1) * * *
(ii) You live outside the United States, you do not inform us that
you wish to appear, and there are no other parties who wish to appear.
* * * * *
0
10. Revise Sec. 416.1460 to read as follows:
Sec. 416.1460 Vacating a dismissal of a request for a hearing before
an administrative law judge.
(a) Except as provided in paragraph (b) of this section, an
administrative law judge or the Appeals Council may vacate a dismissal
of a request for a hearing if you request that we vacate the dismissal.
If you or another party wish to make this request, you must do so
within 60 days of the date you receive notice of the dismissal, and you
must state why our dismissal of your request for a hearing was
erroneous. The administrative law judge or Appeals Council will inform
you in writing of the action taken on your request. The Appeals Council
may also vacate a dismissal of a request for a hearing on its own
motion. If the Appeals Council decides to vacate a dismissal on its own
motion, it will do so within 60 days of the date we mail the notice of
dismissal and will inform you in writing that it vacated the dismissal.
(b) If you wish to proceed with a hearing after you received a
fully favorable revised determination under the prehearing case review
process in Sec. 416.1441, you must follow the procedures in Sec.
416.1441(d) to request that an administrative law judge vacate his or
her order dismissing your request for a hearing.
[FR Doc. 2011-27236 Filed 10-20-11; 8:45 am]
BILLING CODE 4191-02-P
