Removing Inability To Communicate in English as an Education Category, 1006-1014 [2019-00250]

Download as PDF 1006 Federal Register / Vol. 84, No. 22 / Friday, February 1, 2019 / Proposed Rules Authority: 16 U.S.C. 791a–825r, 2601– 2645; 31 U.S.C. 9701; 42 U.S.C. 7101–7352. § 35.37 [Amended] 2. Amend § 35.37 by redesignating paragraph (c)(5) as (c)(7) and adding new paragraphs (c)(5) and (c)(6) to read as follows: ■ § 35.37 Market power analysis required. * * * * * (c) * * * (5) In lieu of submitting the indicative market power screens, Sellers studying regional transmission organization (RTO) or independent system operator (ISO) markets that operate RTO/ISOadministered energy, ancillary services, and capacity markets may state that they are relying on Commission-approved market monitoring and mitigation to address potential horizontal market power Sellers may have in those markets. (6) In lieu of submitting the indicative market power screens, Sellers studying RTO or ISO markets that operate RTO/ ISO-administered energy and ancillary services markets, but not capacity markets, may state that they are relying on Commission-approved market monitoring and mitigation to address potential horizontal market power that Sellers may have in energy and ancillary services. However, Sellers studying such RTOs/ISOs would need to submit indicative market power screens if they wish to obtain market-based rate authority for wholesale sales of capacity in these markets. * * * * * [FR Doc. 2019–00459 Filed 1–31–19; 8:45 am] BILLING CODE 6717–01–P SOCIAL SECURITY ADMINISTRATION 20 CFR Parts 404 and 416 [Docket No. SSA–2017–0046] RIN 0960–AH86 Removing Inability To Communicate in English as an Education Category Social Security Administration. Notice of proposed rulemaking (NPRM). AGENCY: ACTION: We propose to eliminate the education category ‘‘inability to communicate in English’’ when we evaluate disability claims for adults under titles II and XVI of the Social Security Act (Act). Changes in the national workforce since we added this category to our rules in 1978 demonstrate that this education category is no longer a reliable indicator of an individual’s educational attainment or SUMMARY: VerDate Sep<11>2014 16:27 Jan 31, 2019 Jkt 247001 the vocational impact of an individual’s education. The proposed revisions reflect research and data related to English language proficiency, work, and education; expansion of the international reach of our disability programs; and audit findings by our Office of the Inspector General (OIG). The proposed revisions would help us better assess the vocational impact of education in the disability determination process. DATES: To ensure that your comments are considered, we must receive them by no later than April 2, 2019. ADDRESSES: You may submit comments by any one of three methods—internet, fax, or mail. Do not submit the same comments multiple times or by more than one method. Regardless of which method you choose, please state that your comments refer to Docket No. SSA–2017–0046 so that we may associate your comments with the correct regulation. CAUTION: You should be careful to include in your comments only information you wish to make publicly available. We strongly urge you not to include in your comments any personal information, such as Social Security numbers or medical information. 1. Internet: We strongly recommend that you submit your comments via the internet. Please visit the Federal eRulemaking portal at http:// www.regulations.gov. Use the web page’s ‘‘Search’’ function to find docket number SSA–2017–0046 and then submit your comment. The system will issue a tracking number to confirm your submission. You will not be able to view your comment immediately because we must post each comment manually. It may take up to a week for your comment to be viewable. 2. Fax: Fax comments to (410) 966– 2830. 3. Mail: Address your comments to Office of Regulations and Reports Clearance, Social Security Administration, 3100 West High Rise Building, 6401 Security Boulevard, Baltimore, Maryland 21235–6401. Comments and background documents are available for public viewing on the Federal eRulemaking portal at http://www.regulations.gov or in person, during regular business hours, by arranging with the contact person identified below. FOR FURTHER INFORMATION CONTACT: Dan O’Brien, Office of Disability Policy, Social Security Administration, 6401 Security Boulevard, Baltimore, Maryland 21235–6401, (410) 597–1632. For information on eligibility or filing for benefits, call our national toll-free PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 number, 1–800–772–1213, or TTY 1– 800–325–0778, or visit our internet site, Social Security Online, at http:// www.socialsecurity.gov. SUPPLEMENTARY INFORMATION: Background Current Disability Rules for Adults Title II of the Act provides for the payment of disability insurance benefits to fully insured individuals under the Act. Title II also provides for the payment of child’s insurance benefits for individuals who become disabled before attaining age 22, and for the payment of widow’s and widower’s insurance benefits for disabled widows, widowers, and surviving divorced spouses of insured individuals.1 In addition, title XVI of the Act provides for Supplemental Security Income (SSI) payments to eligible individuals who are aged, blind, or disabled and have limited income and resources.2 For adults (including individuals claiming child’s insurance benefits based on disability under title II), the Act defines ‘‘disability’’ under both titles II and XVI as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.3 In many cases, the Act requires us to consider an adult claimant’s education when we determine whether or not he or she is disabled. The Act states that an adult shall be determined to be under a disability only if his physical or mental impairment(s) are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.4 We use a five-step sequential evaluation process to determine whether an adult is disabled based on this statutory definition.5 If we are unable to find an individual disabled or not disabled at a given step, we proceed 1 See sections 202(d)(1)(B)(ii), (e)(1)(B)(ii), (f)(1)(B)(ii), 223(a) of the Act, 42 U.S.C. 402(d)(1)(B)(ii), (e)(1)(B)(ii), (f)(1)(B)(ii), 423(a). 2 Section 1611(a) of the Act, 42 U.S.C. 1382(a). 3 See sections 223(d)(1)(A), 1614(a)(3)(A) of the Act, 42 U.S.C. 423(d)(1)(A), 1382c(a)(3)(A). 4 See sections 223(d)(2)(A), 1614(a)(3)(B) of the Act, 42 U.S.C. 423(d)(2)(A), 1382c(a)(3)(B). 5 20 CFR 404.1520(a)(4) and 416.920(a)(4). E:\FR\FM\01FEP1.SGM 01FEP1 Federal Register / Vol. 84, No. 22 / Friday, February 1, 2019 / Proposed Rules to the next step.6 If we proceed to the fifth and final step, we consider the individual’s residual functional capacity (RFC), which is the most the individual can still do despite his or her limitations,7 together with the individual’s vocational factors of age, education, and work experience,8 to determine if the individual can make an adjustment to perform other work previously not performed.9 We find individuals to be disabled if they cannot make an adjustment to perform other work.10 We find individuals not disabled if they can make an adjustment to perform other work.11 Other work that individuals can adjust to must exist in significant numbers in the national economy.12 At the final step of our sequential evaluation process, we use the Medical-Vocational Guidelines (grid rules) to administer the Act’s definition of disability and direct or guide determinations and decisions about whether individuals are disabled.13 The education category ‘‘inability to communicate in English’’ is administered through the grid rules. Current Policy for Education as a Vocational Factor In this NPRM, we propose to eliminate the education category of ‘‘inability to communicate in English’’ from step five of the disability sequential evaluation process. Instead, we would consider an individual’s 6 Id. At the first step, we consider the individual’s work activity, if any. If the individual is doing substantial gainful activity, we will find the individual not disabled. At the second step, we consider the medical severity of the individual’s impairment(s). If the individual does not have a severe medically determinable physical or mental impairment that meets the duration requirement, or a combination of impairments that is severe and meets the duration requirement, we will find the individual not disabled. At the third step, we also consider the medical severity of the impairment(s). If the individual has an impairment(s) that meets or equals one of our listings in 20 CFR part 404, subpart P Appendix 1 and meets the duration requirement, we will find the individual is disabled. If the individual is found not disabled at the third step, we consider our assessment of the individual’s residual functional capacity and his or her past relevant work at the fourth step. If the individual can still do his or her past relevant work, we will find that the individual is not disabled. At the fifth and last step, we consider our assessment of the individual’s residual functional capacity and his or her age, education, and work experience to see if the individual can make an adjustment to other work. If so, we will find that the individual is not disabled. If the individual cannot make an adjustment to other work, we will find the individual disabled. See 20 CFR 404.1520(a)(4) and 416.920(a)(4). 7 See 20 CFR 404.1545 and 416.945. 8 See 20 CFR 404.1520(g) and 416.920(g). 9 20 CFR 404.1520(a)(4)(v) and 416.920(a)(4)(v). 10 Id. 11 Id. 12 20 CFR 404.1560(c) and 416.960(c). 13 20 CFR 404, Subpart P, Appendix 2. VerDate Sep<11>2014 16:27 Jan 31, 2019 Jkt 247001 education using the other current education categories of high school education and above, marginal education, limited education, and illiteracy. Our current rules explain how we evaluate the vocational factor of education.14 Education is primarily used to mean formal schooling or other training that contributes to an individual’s ability to meet the vocational requirements of work, such as reasoning ability, communication skills, and arithmetic ability.15 However, a lack of formal schooling does not necessarily mean that an individual is uneducated or does not have reasoning, communication, and arithmetic abilities. Past work experience and the kind of responsibilities an individual had when they were working, daily activities, hobbies, or results of testing may show that the individual has significant intellectual ability that can be used to work.16 Generally, we will use individuals’ highest completed numerical grade level to determine the education category.17 However, we may adjust an individual’s education category if there is evidence that his or her educational abilities are higher or lower than the numerical grade level completed in school.18 We discuss the categories that examine such evidence below. We currently use five categories of education: High school education and above, marginal education, limited education, illiteracy, and inability to communicate in English.19 These categories of education are organized into four levels in the grid rules: High school graduate or more; limited or less; marginal or none; and illiterate or unable to communicate in English. High school education and above means abilities in reasoning, arithmetic, and language skills acquired through formal schooling at a 12th grade level or above.20 We generally consider that someone with these educational abilities can do semi-skilled through skilled work. For individuals in this category, we also consider whether there is recently completed education that provides for direct entry into skilled work. If they recently completed education allowing for direct entry into skilled work and are able to perform the work for which they received the 14 See 15 See 20 CFR 404.1564 and 416.964. 20 CFR 404.1564(a) and 416.964(a). 16 Id. 17 See 20 CFR 404.1564(b) and 416.964(b). 18 Id. 19 See 20 CFR 404.1564(b)(1)–(5) and 416.964(b)(1)–(5). 20 See 20 CFR 404.1564(b)(4) and 416.964(b)(4). PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 1007 education, we do not consider them to be disabled.21 Limited education means ability in reasoning, arithmetic, and language skills, but not enough to allow a person with these educational qualifications to do most of the more complex job duties needed in semi-skilled or skilled jobs.22 We generally consider an individual with a 7th grade through the 11th grade level of formal education to have a limited education. Marginal education means ability in reasoning, arithmetic, and language skills needed to do simple, unskilled jobs.23 We generally consider an individual with formal schooling at a 6th grade level or less to have a marginal education. Illiteracy means the inability to read or write.24 We consider an individual illiterate if he or she cannot read or write a simple message, such as instructions or inventory lists, even though the individual can sign his or her name. Generally, we expect an illiterate individual to have little or no formal schooling. Our rules explain that we consider inability to communicate in English an education category because the ability to speak, read, and understand English is generally learned or increased in school.25 Our current rules further explain that because English is the dominant language of this country, it may be difficult for someone who does not speak and understand English to do a job, regardless of the amount of education he or she may have in another language.26 Therefore, under our current rules, we consider an individual’s ability to communicate in English when we evaluate what work, if any, he or she can do. We do not consider fluency in other languages.27 Based on the organization of education categories in the current grid rules, an individual who is unable to 21 See 20 CFR 404, Subpart P Appendix 2, rules 201.00(d) and (g), and Tables No. 1, 2, and 3. 22 See 20 CFR 404.1564(b)(3) and 416.964(b)(3). 23 See 20 CFR 404.1564(b)(2) and 416.964(b)(2). 24 See 20 CFR 404.1564(b)(1) and 416.964(b)(1). 25 See 20 CFR 404.1564(b)(5) and 416.964(b)(5). 26 This policy dates to 1978. See 43 FR 55349 (1978) (codified at 20 CFR 404.1507, 416.907 (1979)). Prior to that time, our rules did not specifically address the inability to communicate in English as a vocational factor. See 20 CFR 404.1502(e) and 416.902(e) (1978). Rather, since 1960, 25 FR 8100, 8101 (1960) (codified at 20 CFR 404.1502(e) (1961)), the rules provided that education and training are factors in determining an individual’s employment capacity, that a lack of formal schooling was not necessarily proof that an individual is uneducated, and that the kinds of responsibilities an individual had while working may indicate an ability to do more than unskilled work, even though an individual’s formal education has been limited. 27 See 20 CFR 404.1564(b)(5) and 416.964(b)(5). E:\FR\FM\01FEP1.SGM 01FEP1 1008 Federal Register / Vol. 84, No. 22 / Friday, February 1, 2019 / Proposed Rules communicate in English may be considered under the grid rules specifying education level of ‘‘illiterate or unable to communicate in English’’ or under the broader category of ‘‘limited or less’’ or ‘‘marginal or none,’’ depending on the individual’s age and RFC.28 Under the grid rules, age 45 is the earliest point at which English language proficiency can make a difference in disability determination.29 In other words, the ‘‘inability to communicate in English’’ education category makes no difference as to the outcome of disability determination for individuals under 45 years of age. The grid rules are premised on the idea that for individuals under age 45, the inability to communicate in English does not pose a significant vocational limitation because being younger gives them an advantage in adjusting to other work.30 Our current rules are also based on the premise that English language proficiency has the least significance for unskilled work because most unskilled jobs involve working with things rather than with data or people.31 Why We Are Proposing To Revise Our Rules In 1978, we promulgated the five-step sequential evaluation process and adopted the grid rules, under which we consider the interaction of the individual’s residual functional capacity, age, education, and work experience to determine whether or not an individual is disabled under our rules. We propose to revise the rules for how we consider an individual’s education in relation to the inability to communicate in English for several reasons. Central to our proposed revisions is that our current rules do not take into account that claimants who cannot read, write, or speak English often have a formal education that may provide them with a vocational advantage. If a claimant meets the current criterion of ‘‘inability to communicate in English,’’ we generally disregard the amount of formal schooling the individual may have and evaluate the claim in the same manner as we do for a claim filed by an illiterate individual. Moreover, since we adopted these rules, the U.S. workforce has become more linguistically diverse and work opportunities have expanded for individuals who lack English 28 See 29 See 20 CFR 404.1564(b)(5) and 416.964(b)(5). 20 CFR 404, Subpart P Appendix 2, Table No. 1. 30 See 20 CFR 404, Subpart P Appendix, rule 201.00(h)(2). 31 See 20 CFR 404, Subpart P Appendix 2, rules 201(h)(4)(i) and 202(g). VerDate Sep<11>2014 16:27 Jan 31, 2019 Jkt 247001 proficiency. Further, our current rules treat English language proficiency as a relevant vocational factor even when claimants live in countries outside the U.S. or in U.S. territories where English is not a dominant language, leading to disparate results based on the location of the claimants. Claimants Who Are Unable To Read, Write, or Speak English Often Have Formal Education That Could Provide a Vocational Advantage Claimants who report an inability to read, write, or speak English often report having a high school education or more. In fiscal year 2016, approximately 49% of title II claimants and 39% of title XVI claimants who reported an inability to read, write, or speak English,32 also reported having completed a high school education or more.33 Further, the claimants who reported an inability to read, write, or speak English and who had at least a high school education had past work experience at higher skill levels, when compared to the claimants with less education.34 Our claims data indicate that higher levels of education may provide a vocational advantage, even for individuals who are unable to communicate in English.35 The U.S. Workforce Has Become More Linguistically Diverse Since we adopted our current rules in 1978, linguistic diversity in the national economy has increased, which has changed the way the inability to communicate in English affects an individual’s ability to work. For purposes of the data analysis in this 32 Under our current rule, these claimants may fall under the ‘‘illiterate’’ or ‘‘inability to communicate in English’’ category. See 20 CFR 404.1564(b)(1) and (5), and 416.964(b)(1) and (5). 33 This conclusion is based on our analysis of the initial determination data for all fiscal year 2016 claims in the U.S. Table 1: Self-reported education level of claimants reporting an inability to read, write or speak English, Adult Initial Determinations, FY 2016 (Table 1), available at regulations.gov as a supporting and related material for docket SSA–2017–0046. We note that in the fiscal year 2016, we adjudicated over 1.5 million and 1.2 million claims, respectively, under titles II and XVI at the initial level, and approximately 7.7% (118,815) title II claimants and 10.1% (128,084) of the title XVI claimants reported an inability to read, write, or speak English. 34 This conclusion is based on our analysis of the title II claims allowed under the grid rules 201.17 and 202.09 at the initial level within the U.S. in fiscal year 2017. See Graph 1: Self-reported education and Specific Vocational Preparation (SVP) level of past relevant work by Title II claimants reporting an inability to read, write, or speak English allowed under 201.17 or 202.09, Initial Determinations within U.S. and U.S. territories, FY 2017, available at regulations.gov as a supporting and related material for docket SSA– 2017–0046. 35 Id. PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 NPRM, we refer to individuals who selfidentified in the U.S. Census Bureau’s (Census) American Community Survey as speaking a language other than English at home and speaking English ‘‘well,’’ ‘‘not well,’’ or ‘‘not at all’’ collectively as LEP.36 We selected this definition consistent with how the Census defines LEP.37 In absolute numbers, the working age population (ages 25–64) with LEP increased from approximately 5.4 to 17.8 million between 1980 and 2016, while more than doubling, from 5.1% to 10.5%, as a percentage of the population.38 Within this group, the number of individuals who spoke no English more than quadrupled from approximately 682,000 to 2.8 million (representing growth from 0.6% to 1.7%, as a percentage of the working age population).39 Between 1980 and 2016, the number of non-English speaking workers in the 25–64 age range grew from approximately 373,000 to 1.7 million.40 During the same period, the labor force participation rate for working age 36 Our analysis is based on the data published by the Census, which is the primary source of data on languages spoken in the U.S. To obtain data on an individual’s ability to speak English, Census has been asking three questions since 1980. The first of the three part-question asks if the respondent speaks a language other than English at home and gives the option to choose ‘‘No, only speaks English’’ or ‘‘Yes.’’ If the respondent selects ‘‘Yes,’’ the second part of the question asks the respondent to identify the language spoken at home. Finally, the third part of the question asks the respondent to rate his or her ability to speak English as ‘‘very well,’’ ‘‘well,’’ ‘‘not well,’’ and ‘‘not at all.’’ See Measuring America: The Decennial Censuses From 1790 to 2000, pp. 85, 92, and 101 available at https://www.census.gov/prod/2002pubs/pol02ma.pdf. In this NPRM, we refer to individuals speaking only English at home as individuals speaking ‘‘only English.’’ We refer to individuals speaking another language at home and speaking no English as individuals speaking English ‘‘not at all’’ or as individuals speaking no English. 37 The U.S. Census Bureau defines LEP as individuals who speak English less than ‘‘very well.’’ U.S. Census Bureau American Community Survey (ACS), What State and Local Governments Need to Know, p. 12, n. 8, February 2009, https:// www.census.gov/content/dam/Census/library/ publications/2009/acs/ACSstateLocal.pdf. 38 See SSA Office of Research, Evaluation, and Statistics (ORES) analysis of 1980 Census and 2016 American Community Survey: English Proficiency, Table 1: Estimated working-age (25–64) population, by English proficiency and educational attainment, 1980 and 2016 (ORES Table 1). Available at regulations.gov as a supporting and related material for docket SSA–2017–0046. 39 Id. We note that ORES Tables refer to an individual speaking no English as an individual who ‘‘does not speak English.’’ 40 See ORES analysis of 1980 Census and 2016 American Community Survey: English Proficiency, Table 2: Estimated labor force participation of working-age population (25–64), by English proficiency and educational attainment, 1980 and 2016 (ORES Table 2). Available at regulations.gov as a supporting and related material for docket SSA–2017–0046. E:\FR\FM\01FEP1.SGM 01FEP1 Federal Register / Vol. 84, No. 22 / Friday, February 1, 2019 / Proposed Rules individuals who speak no English increased from approximately 54.7% to 61.5%.41 Notably, considering the working age population with ‘‘less than high school diploma,’’ the 2016 labor force participation rate for those speaking no English (60.5%) surpassed the labor force participation rate of those speaking ‘‘only English’’ (48.9%).42 In 1980, the reverse was true; working age individuals with less than a high school diploma speaking only English had a 60.7% labor force participation rate that exceeded the 54.5% rate for those speaking no English.43 The increase in labor force participation by individuals who lack English proficiency may be in part due to the increase in low-skilled work in the national economy. In 2014, our Office of Research, Evaluation, and Statistics (ORES) prepared an Evidence Synthesis consolidating information from research we commissioned and other available research for the purposes of modernizing our vocational regulations.44 ORES’ literature review on the vocational factor of education indicates that with the introduction of new technology replacing moderately skilled workers, there are fewer moderately skilled jobs and higher numbers of low and high skilled jobs.45 Indeed, our claims data show that many claimants who may fall within the ‘‘inability to communicate in English’’ category have a history of working in occupations requiring lower level skills such as laborer, machine operator, janitor, cook, maintenance, and housekeeping.46 Consistent with our claims data and ORES’ literature review, 41 Id. 42 Id. 43 Id. 44 See the Extraction of SSA’s Office of Research, Evaluation, and Statistics, ‘‘Evidence Synthesis: The Use of Vocational Factors in the Disability Determination Process’’ (Sept. 2014) (Extraction of Evidence Synthesis), available at regulations.gov as a supporting and related material for docket SSA– 2017–0046. The Evidence Synthesis in its entirety is available at https://www.regulations.gov/ docket?D=SSA-2014-0081. 45 See the Extraction of Evidence Synthesis. See also Acemoglu, Daren, and Autor, David. 2011. ‘‘Chapter 12—Skills, Tasks and Technologies: Implications for Employment and Earnings,’’ in Ashenfelter, O, and Card, D, eds. Handbook of Labor Economics, 4(B): 1043–1171 (available at regulations.gov as a supporting and related material for docket SSA–2017–0046). 46 This is based on our analysis of over 2200 title II and XVI claims allowed under grid rules 201.17 and 202.09 in the fiscal year 2017 only within the U.S. States and the District of Columbia. See Table 2: Top 10 past relevant work held by Title II and Title XVI claimants found disabled under the grid rules 201.17 or 202.09, Adult Initial Determinations within U.S., FY 2016 (Table 2). Available at regulations.gov as a supporting and related material for docket SSA–2017–0046. VerDate Sep<11>2014 16:27 Jan 31, 2019 Jkt 247001 a Brookings Institution’s (Brookings) study of LEP workers in the U.S. found that a lack of English proficiency does not generally prevent low-skilled workers from obtaining employment.47 Brookings’ analysis shows that over 1 million individuals with LEP, including those who speak English ‘‘not at all,’’ are represented in each of the following occupations: Building and grounds cleaning and maintenance; production; construction and extraction; food preparation and serving; transportation and material moving; sales and related occupations; and office and administrative support.48 In the first four of the listed occupations, the workers with LEP make up more than 10% of total workers.49 In sum, both our claims data and external data indicate that work opportunities have expanded and labor force participation has increased for individuals who may fall within the ‘‘inability to communicate in English’’ education category.50 The International Reach of Our Title II Disability Program Has Steadily Expanded Since 1978 Since we adopted our current education categories in 1978, we have established a network of bilateral Social Security agreements that coordinate the U.S. Social Security program with the comparable programs of other 47 Jill H. Wilson, Investing in English Skills: The Limited English Proficient Workforce in U.S. Metropolitan Areas, Metropolitan Policy Program, at Brookings Institution (September 2014), p. 10, available at https://www.brookings.edu/wp-content/ uploads/2014/09/Srvy_EnglishSkills_Sep22.pdf. 48 See Table 2. Occupations with at Least 1 Million LEP Workers, 2012. Id. at 13. 49 Id. 50 We acknowledge that the definition of LEP we used for purposes of the data analysis in this NPRM is not an exact match for the claimants who may fall within the ‘‘inability to communicate in English’’ education category. We also note that the ‘‘inability to communicate in English’’ education category is broader than what the ordinary meaning of the phrase ‘‘inability to communicate’’ may otherwise suggest and can apply to individuals who have no ability or some ability to communicate in English. Under our current rules, individuals who have some or even high capacity to read and write English may be found unable to communicate in English if they are unable to speak English. Alternatively, individuals who can speak some English but are unable to read English may be found unable to communicate in English. In POMS DI 25015.010 C.1.b we expressly state that an individual is unable to communicate in English when the individual cannot speak, understand, read ‘‘or’’ write a simple message in English. This means that even when an individual has some ability to do three out of four, the individual will still be categorized as unable to communicate in English if he or she cannot do all four. (https://secure.ssa.gov/ apps10/poms.NSF/lnx/0425015010). The population described as LEP for the purposes of the data analysis in this NPRM is comparable to the claimant population who may fall under the ‘‘inability to communicate in English’’ education category. PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 1009 countries.51 These international Social Security agreements, often called ‘‘totalization agreements,’’ have two main purposes. First, they eliminate dual Social Security taxation, the situation that occurs when a worker from one country works in another country and is required to pay Social Security taxes to both countries on the same earnings. Second, the agreements help fill gaps in benefit protection for workers who have divided their careers between the U.S. and another country. The international reach of our title II disability program has steadily expanded over the years. In 1978, we had a totalization agreement with only one country.52 We now have totalization agreements with 28 countries.53 English is the predominant language in only four of those countries (Canada, United Kingdom, Ireland, and Australia). When an individual files a disability claim based in part on eligibility under a totalization agreement, we use the same five-step sequential evaluation process to determine whether he or she qualifies for disability benefits. Under our current rules, even if individuals applying for disability live in a country with a totalization agreement where English is not a dominant language, we must still classify them in the ‘‘inability to communicate in English’’ education category if they cannot speak, read, or write English. In light of the significant expansion of the totalization program since 1978, we believe our proposal to consider individuals’ education level would strengthen our international disability program abroad. OIG Audit Recommendation Eligibility for the title II disability program benefits extends to U.S. nationals in the U.S. territories, which include Puerto Rico, the U.S. Virgin Islands, Guam, the Northern Marianas Islands, and American Samoa. As we do for individuals in countries with totalization agreements, we currently consider the inability to communicate in English to be a vocationally relevant factor when adjudicating disability claims in all U.S. territories, regardless of whether English is the dominant 51 Additional information is available at https:// www.ssa.gov/international/agreements_ overview.html. 52 Id. 53 Id. These countries are Italy, Germany, Switzerland, Belgium, Norway, Canada, the United Kingdom, Sweden, Spain, France, Portugal, Netherlands, Austria, Finland, Ireland, Luxembourg, Greece, South Korea, Chile, Australia, Japan, Denmark, the Czech Republic, Poland, the Slovak Republic, Hungary, Uruguay, and Brazil. E:\FR\FM\01FEP1.SGM 01FEP1 1010 Federal Register / Vol. 84, No. 22 / Friday, February 1, 2019 / Proposed Rules language.54 In 2015, OIG examined the trends associated with the application of existing grid rules involving the inability to communicate in English in Puerto Rico.55 OIG’s audit of claims in Puerto Rico indicated that the grid rules involving the inability to communicate in English merit a closer examination. Following the audit, OIG recommended that we evaluate the appropriateness of the grid rules related to the inability to communicate in English when determining eligibility for disability for individuals similar to those evaluated in the audit. In response to the audit, we analyzed the fiscal year 2016 national data for claims adjudicated under the two main grid rules dealing with the inability to communicate in English (i.e., grid rules 201.17 and 202.09). In FY 2016, our analysis revealed that claims from Puerto Rico (31.2%), California (19.2%), New York (11.22%), and Florida (5.8%) accounted for 67.42% (1,677) of all initial title II allowances (2,487) made under these two grid rules.56 While claims allowed under the two grid rules in Puerto Rico accounted for nearly a third of all initial title II allowances under the two grid rules nationally, claims from Puerto Rico represented 1% 54 Among the U.S. territories, English is dominant language only in the U.S. Virgin Islands. In the U.S. Virgin Islands, 71.6% speak English only, 17.2% speak Spanish or Spanish Creole, 8.6% speak French or French Creole, and 2.5% speak other languages. Available at https:// factfinder.census.gov/faces/tableservices/jsf/pages/ productview.xhtml?pid=DEC_10_DPVI_ VIDP2&prodType=table. As for the other territories, in American Samoa, 88.6% speak Samoan, 3.9% speak English only, 2.7% speak Tongan, 3% speak other Pacific Island languages, and 1.4% speak Asian languages. Available at https:// factfinder.census.gov/faces/tableservices/jsf/pages/ productview.xhtml?pid=DEC_10_DPAS_ ASDP2&prodType=table. In Guam, 43.6% speak English only, 21.2% speak Philippine languages, 17.8% speak Chamorro, 10% speak other Pacific island languages, and 6.3% Asian languages. Available at https://factfinder.census.gov/faces/ tableservices/jsf/pages/ productview.xhtml?pid=DEC_10_DPGU_ GUDP2&prodType=table. In Puerto Rico, 94.3% speak Spanish and 5.5% speak English only. Available at https://factfinder.census.gov/faces/ tableservices/jsf/pages/ productview.xhtml?pid=ACS_16_5YR_ DP02PR&prodType=table. In U.S. Northern Mariana Islands, 32.8% speak Philippine languages, 24.1% speak Chamorro, 17% speak English only, 14.1% speak Asian languages, and 5.1% speak other Pacific Island languages. Available at https:// factfinder.census.gov/faces/tableservices/jsf/pages/ productview.xhtml?pid=DEC_10_DPMP_ MPDP2&prodType=table. 55 Qualifying for Disability Benefits in Puerto Rico Based on an Inability to Speak English, available at https://oig.ssa.gov/sites/default/files/audit/full/pdf/ A-12-13-13062_0.pdf. 56 See Table 3: Title II Allowances under grid rules 201.17 or 202.09, Adult Initial Determinations within U.S. and U.S. territories, FY 2016 (Table 3). Available at regulations.gov as a supporting and related material for docket SSA–2017–0046. VerDate Sep<11>2014 16:27 Jan 31, 2019 Jkt 247001 of all of the 472,468 of initial title II disability allowances.57 Our current policy on the inability to communicate in English explains the seemingly disproportionate number of allowances made under grid rules 201.17 and 202.09 in Puerto Rico. According to U.S. census data, 94.3% of the residents in Puerto Rico speak Spanish.58 Consistent with this data, in fiscal year 2016, 11,564 (86.8%) claimants in Puerto Rico reported an inability to read, write, or speak English.59 Among the claimants who reported an inability to read, write, or speak English, 9,167 (79.3%) had an education at high school or more.60 A subsequent analysis of our data from the fiscal year 2017 similarly showed that 80.4% of the claimants who reported an inability to read, write, or speak English and were approved for disability under the grid rules 201.17 and 202.09 had high school education or more.61 Their work histories varied and included many professions requiring high levels of education and skills.62 These data indicate that an ability to communicate in English is not the most appropriate proxy for determining educational categorization. ANPRM On September 14, 2015, we published an Advance Notice of Proposed Rule Making (ANPRM) in the Federal Register entitled ‘‘Vocational Factors of Age, Education, and Work Experience in the Adult Disability Determination Process.’’ 63 In this ANPRM, we documented our longitudinal vocational factors research efforts from 1998 to 2014, and we solicited public comments 57 Id. 58 Available at https://factfinder.census.gov/ faces/tableservices/jsf/pages/ productview.xhtml?pid=ACS_16_5YR_ DP02PR&prodType=table. 59 See Chart 1: Claimants reporting an inability to read, write, or speak English Adult Initial Determinations, Puerto Rico, FY 2016 (Chart 1). Available at regulations.gov as a supporting and related material for docket SSA–2017–0046. 60 See Chart 1. 61 See Chart 2: Self-reported education level of claimants reporting an inability to read, write or speak English allowed under 201.17 or 202.09, Adult Initial Determinations, Puerto Rico, FY 2017. Available at regulations.gov as a supporting and related material for docket SSA–2017–0046. 62 For example, our fiscal year 2017 data on Puerto Rico showed that work history of the claimants allowed under grid rules 201.17 or 202.09 included jobs in nursing, education, management, community work, financial, and legal fields. See Table 4: Past relevant work of Title II claimants with 1 or more years of college education. Allowances under 201.17 or 202.09, Adult Initial Allowances, Puerto Rico, FY 2017, available regulations.gov as a supporting and related material for docket SSA–2017–0046. 63 80 FR 55050, available at https:// www.regulations.gov/docket?D=SSA-2014-0081. PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 and supporting data about how each of these vocational factors affects an individual’s ability to adjust to other work.64 We said that we would consider all relevant public comments we received, but that we would not respond directly to them.65 Although we did not specifically ask for comments on the ‘‘inability to communicate in English’’ education category, 10 of the 137 public comments submitted in response to the ANPRM, including those submitted after we extended the comment period, addressed that issue.66 Commenters expressed diverging opinions; these commenters did not present supportive data. For example, one commenter said that in today’s economy, literacy in English has much less effect on an individual’s ability to work because, in the opinion of the commenter, many non-English speakers are currently working throughout the U.S. economy. Another commenter noted that the inability to communicate in English would further erode an individual’s ability to work and that it should be given more weight. Proposed Revisions For the reasons stated above, we propose to revise the rules we use to evaluate education as a vocational factor for individuals who communicate in a language other than English when we evaluate disability claims for adults under titles II and XVI of the Act. Specifically, we propose to change how we evaluate education for individuals who communicate in a language other than English by removing the education category ‘‘inability to communicate in English.’’ Under the proposed regulations, we would not consider an individual’s educational attainment to be at a lower education category than his or her highest numeric grade level solely because the education occurred in a language other than English, the individual participated in an English language learner program, such as an English as a second language class, or the individual is deemed to have LEP under current Federal standards.67 These proposed rules retain our 64 Available at https://www.regulations.gov/ docket?D=SSA-2014-0081. 65 80 FR at 55051. 66 80 FR 66843, available at https:// www.regulations.gov/docket?D=SSA-2014-0081. 67 Individuals who do not speak English as their primary language and who have a limited ability to read, speak, write, or understand English can be limited English proficient, or LEP, available at https://www.lep.gov/faqs/faqs.html#OneQ1. We note that the definition of LEP provided by LEP.gov differs from the definition of LEP we used to present data as explained earlier. E:\FR\FM\01FEP1.SGM 01FEP1 Federal Register / Vol. 84, No. 22 / Friday, February 1, 2019 / Proposed Rules longstanding and well-supported recognition that more formal education, work experience, and training improve an individual’s ability to adjust to other work. Instead, we would apply our current rules for determining an individual’s education category for all claimants regardless of which language they use to communicate. We will use an individual’s numerical grade level to determine the education category of the individual, and we may adjust an individual’s education category if there is evidence that his or her attained educational abilities are higher or lower than the highest numerical grade level completed in school. We propose to make these and other minor conforming revisions in 20 CFR 404.1564 and 416.964. We also propose to make other revisions to these sections to remove references to the English language. We also propose to revise the grid rules. First, we propose to revise all grid rules referencing an inability to communicate in English. Specifically, we would revise ‘‘Illiterate or unable to communicate in English’’ to ‘‘Illiterate’’ (201.17, 201.23, 202.09, 202.16) and ‘‘Limited or less—at least literate and able to communicate in English’’ to ‘‘Limited or Marginal, but not Illiterate’’ (201.18, 201.24, 202.10, 202.17). For clarity and ease of use, we propose to revise ‘‘Marginal or none’’ to ‘‘Marginal or Illiterate’’ (203.01). Second, we propose to make other conforming changes throughout the grid rules consistent with the revisions discussed above. How We Would Implement These Proposed Revisions If we adopt these proposed rules as final rules, we would begin to apply them to new applications, pending claims, and continuing disability reviews (CDR), as appropriate, as of the effective date of the final rules.68 inconsistent with the final rules.69 We may also rescind or replace other current Social Security Rulings to conform to the final rules. Where necessary, we would also issue updated subregulatory guidance. Executive Order 12866, as supplemented by Executive Order 13563. Therefore, OMB reviewed it. Rulemaking Analyses and Notices Executive Order 13132 (Federalism) We will consider all comments we receive on or before the close of business on the comment closing date indicated above. The comments will be available for examination in the rulemaking docket for these rules at the above address. We will file comments received after the comment closing date in the docket and will consider those comments to the extent practicable. However, we will not respond specifically to untimely comments. We may publish a final rule at any time after close of the comment period. We analyzed this proposed rule in accordance with the principles and criteria established by Executive Order 13132, and determined that the proposed rule will not have sufficient Federalism implications to warrant the preparation of a Federalism assessment. We also determined that this proposed rule will not preempt any State law or State regulation or affect the States’ abilities to discharge traditional State governmental functions. Clarity of This Rule Executive Order 12866, as supplemented by Executive Order 13563, requires each agency to write all rules in plain language. In addition to your substantive comments on this notice of proposed rulemaking, we invite your comments on how to make the rule easier to understand. For example: • Would more, but shorter, sections be better? • Are the requirements in the rule clearly stated? • Have we organized the material to suit your needs? • Could we improve clarity by adding tables, lists, or diagrams? • What else could we do to make the rule easier to understand? • Does the rule contain technical language or jargon that is not clear? • Would a different format make the rule easier to understand, e.g., grouping and order of sections, use of headings, paragraphing? Regulatory Procedures Effect on Current Regulatory and Subregulatory Guidance If we adopt these proposed rules as final rules, we would rescind Acquiescence Ruling (AR) 86–3(5), which applies to claims in the Fifth Circuit, because AR 86–3(5) would be We consulted with the Office of Management and Budget (OMB) and determined that this notice of proposed rulemaking meets the criteria for a significant regulatory action under would use the final rules beginning on their effective date. We would apply the final rules to new applications filed on or after the effective date, and to claims that are pending on and after the effective date. This means that we would use the final rules on and after their effective date in any case in which we make a determination or decision, including CDRs, as appropriate. See 20 CFR 404.902 and 416.1402. VerDate Sep<11>2014 16:27 Jan 31, 2019 Jkt 247001 69 AR 86–3(5): Martinez v. Heckler, 735 F.2d 795 (5th Cir. 1984) Disability Program—Individuals Who Are Illiterate and Unable To Communicate in English—Titles II and XVI of the Social Security Act addresses whether the Social Security disability grid rules applicable to individuals who are illiterate or unable to communicate in English are applicable to individuals who are illiterate and unable to communicate in English. PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 We also determined that this final rule meets the plain language requirement of Executive Order 12866. Executive Order 13771 Based upon the criteria established in Executive Order 13771, we have identified the anticipated program cost and administrative costs as the following. Anticipated Costs to Our Programs: Our Office of the Chief Actuary estimates, based on the best available data, that this proposed rule, assuming it is finalized and implemented for all disability decisions completed after June 2, 2019, would result in a reduction of about 6,500 OASDI beneficiary awards per year and 4,000 SSI recipient awards per year on average over the period FY 2019–28, with a corresponding reduction of $4.6 billion in OASDI benefit payments and $0.8 billion in Federal SSI payments over the same period. Anticipated Administrative Costs to the Social Security Administration: The Office of Budget, Finance, and Management estimated administrative costs of $97 million for SSA and $24 million for DDS, totaling $121 million, for the 10-year period from FY 2019 through FY 2028. Regulatory Flexibility Act Executive Order 12866, as Supplemented by Executive Order 13563 68 We 1011 We certify that this proposed rule will not have a significant economic impact on a substantial number of small entities because it affects individuals only. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis. Paperwork Reduction Act These proposed rules contain public reporting requirements in the regulation sections listed below, or will require changes in the forms listed below, which we did not previously clear through an existing Information Collection Request. E:\FR\FM\01FEP1.SGM 01FEP1 1012 Federal Register / Vol. 84, No. 22 / Friday, February 1, 2019 / Proposed Rules Number of respondents (annually) Average burden per response (minutes) OMB No., Form No., Regulation section Description of public reporting requirement 0960–0072; SSA–454 ....................... 0960–0579; SSA–3368 ..................... 0960–0681; SSA–3373 ..................... 0960–0635; SSA–3380 ..................... 20 CFR 416.964; 20 CFR 404.1564 0960–0144; SSA–3441 ..................... Continuing Disability Review Report Disability Report—Adult ................... Function Report—Adult .................... Function Report—Adult Third Party 541,000 2,258,510 1,734,635 709,700 1 1 1 1 60 95 61 61 541,000 3,575,974 1,763,546 721,528 Disability Report-Appeal ................... 637,431 1 50 531,193 Total ........................................... ........................................................... 5,881,276 ........................ ........................ 7,133,241 SSA submitted an Information Collection Request for clearance to OMB. We are soliciting comments on the burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize the burden on respondents, including the use of automated techniques or other forms of information technology. If you would like to submit comments, please send them to the following locations: Office of Management and Budget, Attn: Desk Officer for SSA, Fax Number: 202–395–6974, Email address: OIRA_ Submission@omb.eop.gov Social Security Administration, OLCA, Attn: Reports Clearance Director, 3100 West High Rise, 6401 Security Blvd., Baltimore, MD 21235, Fax: 410–966– 2830, Email address: OR.Reports.Clearance@ssa.gov You can submit comments until April 2, 2019, which is 60 days after the publication of this notice. To receive a copy of the OMB clearance package, contact the SSA Reports Clearance Officer using any of the above contact methods. We prefer to receive comments by email or fax. 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. 20:37 Jan 31, 2019 Jkt 247001 Administrative practice and procedure, Reporting and recordkeeping requirements, Supplemental Security Income (SSI). Dated: January 2, 2019. Nancy Berryhill, Acting Commissioner of Social Security. For the reasons set out in the preamble, we propose to amend 20 CFR part 404 subpart P and part 416 subpart I as set forth below: PART 404—FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950–) Subpart P—Determining Disability and Blindness Estimated annual burden school, and whether you are able to understand, read, and write, and do at least simple arithmetic calculations. * * * ■ 3. Amend Appendix 2 to Subpart P of Part 404 by: ■ a. Revising 201.00(h)(1)(iv); ■ b. Revising the second sentence of 201.00(h)(2); ■ c. Revising In 201.00(h)(4)(i); ■ d. In 201.00 Table No. 1, revise rules 201.17, 201.18, 201.23, and 201.24; ■ e. Revising 202.00(d) and (g) ■ f. In 202.00 Table No 2, revising rules 202.09, 202.10, 202.16, and 202.17; and ■ g. In 203.00 Table No. 3, revising rule 203.01. The revisions to read as follows: Appendix 2 to Subpart P of Part 404— 1. The authority citation for subpart P of part 404 continues to read as follows: ■ Authority: Secs. 202, 205(a)–(b) and (d)– (h), 216(i), 221(a) and (h)–(j), 222(c), 223, 225, and 702(a)(5) of the Social Security Act (42 U.S.C. 402, 405(a)–(b) and (d)–(h), 416(i), 421(a) and (h)–(j), 422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104–193, 110 Stat. 2105, 2189; sec. 202, Pub. L. 108–203, 118 Stat. 509 (42 U.S.C. 902 note). 2. Amend § 404.1564 by: a. Removing the sixth sentence of paragraph (b) introductory text and paragraph (b)(5); ■ b. Redesignating paragraph (b)(6) as paragraph (c), and ■ c. Revising the first sentence of newly redesignated paragraph (c). The revision to read as follows: ■ ■ (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.) VerDate Sep<11>2014 20 CFR Part 416 Frequency of response § 404.1564 factor. Your education as a vocational * * * * * (c) Information about your education. We will ask you how long you attended PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 * * * * * 201.00 * * * (h)(1) * * * (iv) Are illiterate. (2) * * * It is usually not a significant factor in limiting such individual’s ability to make an adjustment to other work, including an adjustment to unskilled sedentary work, even when the individuals are illiterate. * * * (4) * * * (i) While illiteracy may significantly limit an individual’s vocational scope, the primary work functions in most unskilled occupations involve working with things (rather than with data or people). In these work functions, education has the least significance. Similarly the lack of relevant work experience would have little significance since the bulk of unskilled jobs require no qualifying work experience. Thus, the functional capacity for a full range of sedentary work represents sufficient numbers of jobs to indicate substantial vocational scope for those individuals age 18–44, even if they are illiterate. E:\FR\FM\01FEP1.SGM 01FEP1 1013 Federal Register / Vol. 84, No. 22 / Friday, February 1, 2019 / Proposed Rules TABLE NO. 1—RESIDUAL FUNCTIONAL CAPACITY—MAXIMUM SUSTAINED WORK CAPABILITY LIMITED TO SEDENTARY WORK AS A RESULT OF SEVERE MEDICALLY DETERMINABLE IMPAIRMENT(S) Rule Age Education Previous work experience * 201.17 ................................ * * Younger individual age 45–49. ......do ................................ * Illiterate ............................. * * Unskilled or none .............. Disabled. Limited or Marginal, but not Illiterate. ......do ................................ Not disabled.* * Illiterate ............................. * * Unskilled or none .............. Do.4 Limited or Marginal, but not Illiterate. ......do ................................ Do.4 201.18 ................................ * 201.23 ................................ 201.24 ................................ * * * * * Younger individual age 18–44. ......do ................................ * * * * * * * * * * (i.e., closely approaching advanced age, 50– 54) and an individual’s vocational scope is further significantly limited by illiteracy. 202.00 * * (d) A finding of disabled is warranted where the same factors in paragraph (c) of this section regarding education and previous work experience are present, but where age, though not advanced, is a factor which significantly limits vocational adaptability * * * * * (g) While illiteracy may significantly limit an individual’s vocational scope, the primary work functions in most unskilled occupations relate to working with things (rather than data or people). In these work functions, education has the least Decision * * * * significance. Similarly, the lack of relevant work experience would have little significance since the bulk of unskilled jobs require no qualifying work experience. The capability for light work, which includes the ability to do sedentary work, represents the capability for substantial numbers of such jobs. This, in turn, represents substantial vocational scope for younger individuals (age 18–49), even if they are illiterate. TABLE NO. 2—RESIDUAL FUNCTIONAL CAPACITY—MAXIMUM SUSTAINED WORK CAPABILITY LIMITED TO LIGHT WORK AS A RESULT OF SEVERE MEDICALLY DETERMINABLE IMPAIRMENT(S) Rule Age Education Previous work experience * 202.09 ................................ * Illiterate ............................. * * Unskilled or none .............. Disabled. 202.10 ................................ * * Closely approaching advanced age. ......do ................................ Limited or Marginal, but not Illiterate. ......do ................................ Not disabled. * 202.16 ................................ 202.17 ................................ * * Younger individual ............ ......do ................................ * Illiterate ............................. Limited or Marginal, but not Illiterate. * * Unskilled or none .............. ......do ................................ Do. Do. * * * * * Decision * * * * 203.00 * * * * * TABLE NO. 3—RESIDUAL FUNCTIONAL CAPACITY—MAXIMUM SUSTAINED WORK CAPABILITY LIMITED TO MEDIUM WORK AS A RESULT OF SEVERE MEDICALLY DETERMINABLE IMPAIRMENT(S) Rule Age Education Previous work experience 203.01 ................................ * ......................................... Marginal or Illiterate .......... * ......................................... * VerDate Sep<11>2014 * 16:27 Jan 31, 2019 * Jkt 247001 PO 00000 * Frm 00034 Fmt 4702 * Sfmt 4702 E:\FR\FM\01FEP1.SGM * 01FEP1 Decision * * 1014 Federal Register / Vol. 84, No. 22 / Friday, February 1, 2019 / Proposed Rules PART 416—SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND DISABLED Subpart I—Determinnig Disability and Blindness 8. The authority citation for subpart I of part 416 continues to read as follows: ■ Authority: Secs. 221(m), 702(a)(5), 1611, 1614, 1619, 1631(a), (c), (d)(1), and (p), and 1633 of the Social Security Act (42 U.S.C. 421(m), 902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), (d)(1), and (p), and 1383b); secs. 4(c) and 5, 6(c)–(e), 14(a), and 15, Pub. L. 98– 460, 98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note, 423 note, and 1382h note). 9. Amend § 416.964 by a. Removing the sixth sentence of paragraph (b) introductory text and paragraph (b)(5); ■ b. Redesignating paragraph (b)(6) as paragraph (c); and ■ c. Revising the first sentence of newly redesignated paragraph (c) The revision to read as follows: ■ ■ § 416.964 factor. Your education as a vocational * * * (c) Information about your education. We will ask you how long you attended school, and whether you are able to understand, read, and write, and do at least simple arithmetic calculations. * * * [FR Doc. 2019–00250 Filed 1–31–19; 8:45 am] BILLING CODE 4191–02–P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG–104390–18] RIN 1545–BO54 Guidance Related to Section 951A (Global Intangible Low-Taxed Income); Hearing Internal Revenue Service (IRS), Treasury. ACTION: Proposed rule; notice of hearing. AGENCY: This document provides a notice of public hearing on proposed regulations relating to section 951A of the Internal Revenue Code, and added to the Internal Revenue Code by the Tax Cuts and Jobs Act, which was enacted on December 22, 2017. DATES: The public hearing is being held on Wednesday, February 13, 2019, at 10 a.m. The IRS must receive speakers’ outlines of the topics to be discussed at the public hearing by Monday, February 11, 2019. SUMMARY: VerDate Sep<11>2014 16:27 Jan 31, 2019 Jkt 247001 The public hearing is being held in the IRS Auditorium, Internal Revenue Service Building, 1111 Constitution Avenue NW, Washington, DC 20224. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present a valid photo identification to enter the building. Send Submissions to CC:PA:LPD:PR (REG–104390–18), Room 5205, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be handdelivered Monday through Friday to CC:PA:LPD:PR (REG–104390–18), Couriers Desk, Internal Revenue Service, 1111 Constitution Avenue NW, Washington, DC 20224 or sent electronically via the Federal eRulemaking Portal at www.regulations.gov (IRS REG–104390– 18). ADDRESSES: FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations, Jorge Oben (202) 317–6934; concerning submissions of comments, the hearing and/or to be placed on the building access list to attend the hearing, Regina Johnson at (202) 317–6901 (not toll-free numbers). SUPPLEMENTARY INFORMATION: The subject of the public hearing is the notice of proposed rulemaking (REG–104390–18) that was published in the Federal Register on Wednesday, October 10, 2018 (83 FR 51072). The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing that submitted written comments by November 26, 2018 must submit an outline of the topics to be addressed and the amount of time to be devoted to each topic by Monday, February 11, 2019. A period of 10 minutes is allotted to each person for presenting oral comments. After the deadline for receiving outlines has passed, the IRS will prepare an agenda containing the schedule of speakers. Copies of the agenda will be made available, free of charge, at the hearing or by contacting the Publications and Regulations Branch at (202) 317–6901(not a toll-free number). Because of access restrictions, the IRS will not admit visitors beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 INFORMATION CONTACT section of this document. Martin V. Franks, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration). [FR Doc. 2019–00619 Filed 1–29–19; 4:15 pm] BILLING CODE 4830–01–P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG–115420–18] RIN 1545–BP03 Investing in Qualified Opportunity Funds; Hearing Internal Revenue Service (IRS), Treasury. ACTION: Notice of public hearing on proposed rulemaking. AGENCY: This document announces a public hearing on proposed regulations concerning investing in qualified opportunity funds (QOF). DATES: The public hearing is scheduled for February 14, 2019 at 10 a.m. The public comment period for these regulations expired on December 28, 2018. The notice of proposed rulemaking and notice of hearing instructed those interested in testifying at the public hearing to submit a request to speak and an outline of the topics to be discussed. The outlines of topics to be discussed were due by December 28, 2018. ADDRESSES: The public hearing is being held in the Auditorium, Internal Revenue Service Building, 1111 Constitution Avenue NW, Washington, DC 20224. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present a valid photo identification to enter the building SUMMARY: FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations, Erika Reigle, Office of Associate Chief Counsel (Income Tax and Accounting) at (202) 317–7006 (not a toll-free number); concerning information, the hearing and/or to be placed on the building access list to attend the hearing, Regina Johnson at (202) 317– 6901 (not toll-free numbers). SUPPLEMENTARY INFORMATION: A notice of proposed rulemaking and notice of public hearing that appeared in the Federal Register on Monday, October 29, 2018 (83 FR 54279) announced that E:\FR\FM\01FEP1.SGM 01FEP1

Agencies

[Federal Register Volume 84, Number 22 (Friday, February 1, 2019)]
[Proposed Rules]
[Pages 1006-1014]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-00250]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA-2017-0046]
RIN 0960-AH86


Removing Inability To Communicate in English as an Education 
Category

AGENCY: Social Security Administration.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: We propose to eliminate the education category ``inability to 
communicate in English'' when we evaluate disability claims for adults 
under titles II and XVI of the Social Security Act (Act). Changes in 
the national workforce since we added this category to our rules in 
1978 demonstrate that this education category is no longer a reliable 
indicator of an individual's educational attainment or the vocational 
impact of an individual's education. The proposed revisions reflect 
research and data related to English language proficiency, work, and 
education; expansion of the international reach of our disability 
programs; and audit findings by our Office of the Inspector General 
(OIG). The proposed revisions would help us better assess the 
vocational impact of education in the disability determination process.

DATES: To ensure that your comments are considered, we must receive 
them by no later than April 2, 2019.

ADDRESSES: You may submit comments by any one of three methods--
internet, fax, or mail. Do not submit the same comments multiple times 
or by more than one method. Regardless of which method you choose, 
please state that your comments refer to Docket No. SSA-2017-0046 so 
that we may associate your comments with the correct regulation. 
CAUTION: You should be careful to include in your comments only 
information you wish to make publicly available. We strongly urge you 
not to include in your comments any personal information, such as 
Social Security numbers or medical information.
    1. Internet: We strongly recommend that you submit your comments 
via the internet. Please visit the Federal eRulemaking portal at http://www.regulations.gov. Use the web page's ``Search'' function to find 
docket number SSA-2017-0046 and then submit your comment. The system 
will issue a tracking number to confirm your submission. You will not 
be able to view your comment immediately because we must post each 
comment manually. It may take up to a week for your comment to be 
viewable.
    2. Fax: Fax comments to (410) 966-2830.
    3. Mail: Address your comments to Office of Regulations and Reports 
Clearance, Social Security Administration, 3100 West High Rise 
Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.
    Comments and background documents are available for public viewing 
on the Federal eRulemaking portal at http://www.regulations.gov or in 
person, during regular business hours, by arranging with the contact 
person identified below.

FOR FURTHER INFORMATION CONTACT: Dan O'Brien, Office of Disability 
Policy, Social Security Administration, 6401 Security Boulevard, 
Baltimore, Maryland 21235-6401, (410) 597-1632. For information on 
eligibility or filing for benefits, call our national toll-free number, 
1-800-772-1213, or TTY 1-800-325-0778, or visit our internet site, 
Social Security Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION:

Background

Current Disability Rules for Adults

    Title II of the Act provides for the payment of disability 
insurance benefits to fully insured individuals under the Act. Title II 
also provides for the payment of child's insurance benefits for 
individuals who become disabled before attaining age 22, and for the 
payment of widow's and widower's insurance benefits for disabled 
widows, widowers, and surviving divorced spouses of insured 
individuals.\1\ In addition, title XVI of the Act provides for 
Supplemental Security Income (SSI) payments to eligible individuals who 
are aged, blind, or disabled and have limited income and resources.\2\
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    \1\ See sections 202(d)(1)(B)(ii), (e)(1)(B)(ii), (f)(1)(B)(ii), 
223(a) of the Act, 42 U.S.C. 402(d)(1)(B)(ii), (e)(1)(B)(ii), 
(f)(1)(B)(ii), 423(a).
    \2\ Section 1611(a) of the Act, 42 U.S.C. 1382(a).
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    For adults (including individuals claiming child's insurance 
benefits based on disability under title II), the Act defines 
``disability'' under both titles II and XVI as the inability to engage 
in any substantial gainful activity by reason of any medically 
determinable physical or mental impairment which can be expected to 
result in death or which has lasted or can be expected to last for a 
continuous period of not less than 12 months.\3\
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    \3\ See sections 223(d)(1)(A), 1614(a)(3)(A) of the Act, 42 
U.S.C. 423(d)(1)(A), 1382c(a)(3)(A).
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    In many cases, the Act requires us to consider an adult claimant's 
education when we determine whether or not he or she is disabled. The 
Act states that an adult shall be determined to be under a disability 
only if his physical or mental impairment(s) are of such severity that 
he is not only unable to do his previous work but cannot, considering 
his age, education, and work experience, engage in any other kind of 
substantial gainful work which exists in the national economy, 
regardless of whether such work exists in the immediate area in which 
he lives, whether a specific job vacancy exists for him, or whether he 
would be hired if he applied for work.\4\
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    \4\ See sections 223(d)(2)(A), 1614(a)(3)(B) of the Act, 42 
U.S.C. 423(d)(2)(A), 1382c(a)(3)(B).
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    We use a five-step sequential evaluation process to determine 
whether an adult is disabled based on this statutory definition.\5\ If 
we are unable to find an individual disabled or not disabled at a given 
step, we proceed

[[Page 1007]]

to the next step.\6\ If we proceed to the fifth and final step, we 
consider the individual's residual functional capacity (RFC), which is 
the most the individual can still do despite his or her limitations,\7\ 
together with the individual's vocational factors of age, education, 
and work experience,\8\ to determine if the individual can make an 
adjustment to perform other work previously not performed.\9\ We find 
individuals to be disabled if they cannot make an adjustment to perform 
other work.\10\ We find individuals not disabled if they can make an 
adjustment to perform other work.\11\ Other work that individuals can 
adjust to must exist in significant numbers in the national 
economy.\12\ At the final step of our sequential evaluation process, we 
use the Medical-Vocational Guidelines (grid rules) to administer the 
Act's definition of disability and direct or guide determinations and 
decisions about whether individuals are disabled.\13\ The education 
category ``inability to communicate in English'' is administered 
through the grid rules.
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    \5\ 20 CFR 404.1520(a)(4) and 416.920(a)(4).
    \6\ Id. At the first step, we consider the individual's work 
activity, if any. If the individual is doing substantial gainful 
activity, we will find the individual not disabled. At the second 
step, we consider the medical severity of the individual's 
impairment(s). If the individual does not have a severe medically 
determinable physical or mental impairment that meets the duration 
requirement, or a combination of impairments that is severe and 
meets the duration requirement, we will find the individual not 
disabled. At the third step, we also consider the medical severity 
of the impairment(s). If the individual has an impairment(s) that 
meets or equals one of our listings in 20 CFR part 404, subpart P 
Appendix 1 and meets the duration requirement, we will find the 
individual is disabled. If the individual is found not disabled at 
the third step, we consider our assessment of the individual's 
residual functional capacity and his or her past relevant work at 
the fourth step. If the individual can still do his or her past 
relevant work, we will find that the individual is not disabled. At 
the fifth and last step, we consider our assessment of the 
individual's residual functional capacity and his or her age, 
education, and work experience to see if the individual can make an 
adjustment to other work. If so, we will find that the individual is 
not disabled. If the individual cannot make an adjustment to other 
work, we will find the individual disabled. See 20 CFR 
404.1520(a)(4) and 416.920(a)(4).
    \7\ See 20 CFR 404.1545 and 416.945.
    \8\ See 20 CFR 404.1520(g) and 416.920(g).
    \9\ 20 CFR 404.1520(a)(4)(v) and 416.920(a)(4)(v).
    \10\ Id.
    \11\ Id.
    \12\ 20 CFR 404.1560(c) and 416.960(c).
    \13\ 20 CFR 404, Subpart P, Appendix 2.
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Current Policy for Education as a Vocational Factor

    In this NPRM, we propose to eliminate the education category of 
``inability to communicate in English'' from step five of the 
disability sequential evaluation process. Instead, we would consider an 
individual's education using the other current education categories of 
high school education and above, marginal education, limited education, 
and illiteracy.
    Our current rules explain how we evaluate the vocational factor of 
education.\14\ Education is primarily used to mean formal schooling or 
other training that contributes to an individual's ability to meet the 
vocational requirements of work, such as reasoning ability, 
communication skills, and arithmetic ability.\15\ However, a lack of 
formal schooling does not necessarily mean that an individual is 
uneducated or does not have reasoning, communication, and arithmetic 
abilities. Past work experience and the kind of responsibilities an 
individual had when they were working, daily activities, hobbies, or 
results of testing may show that the individual has significant 
intellectual ability that can be used to work.\16\
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    \14\ See 20 CFR 404.1564 and 416.964.
    \15\ See 20 CFR 404.1564(a) and 416.964(a).
    \16\ Id.
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    Generally, we will use individuals' highest completed numerical 
grade level to determine the education category.\17\ However, we may 
adjust an individual's education category if there is evidence that his 
or her educational abilities are higher or lower than the numerical 
grade level completed in school.\18\ We discuss the categories that 
examine such evidence below.
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    \17\ See 20 CFR 404.1564(b) and 416.964(b).
    \18\ Id.
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    We currently use five categories of education: High school 
education and above, marginal education, limited education, illiteracy, 
and inability to communicate in English.\19\ These categories of 
education are organized into four levels in the grid rules: High school 
graduate or more; limited or less; marginal or none; and illiterate or 
unable to communicate in English.
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    \19\ See 20 CFR 404.1564(b)(1)-(5) and 416.964(b)(1)-(5).
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    High school education and above means abilities in reasoning, 
arithmetic, and language skills acquired through formal schooling at a 
12th grade level or above.\20\ We generally consider that someone with 
these educational abilities can do semi-skilled through skilled work. 
For individuals in this category, we also consider whether there is 
recently completed education that provides for direct entry into 
skilled work. If they recently completed education allowing for direct 
entry into skilled work and are able to perform the work for which they 
received the education, we do not consider them to be disabled.\21\
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    \20\ See 20 CFR 404.1564(b)(4) and 416.964(b)(4).
    \21\ See 20 CFR 404, Subpart P Appendix 2, rules 201.00(d) and 
(g), and Tables No. 1, 2, and 3.
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    Limited education means ability in reasoning, arithmetic, and 
language skills, but not enough to allow a person with these 
educational qualifications to do most of the more complex job duties 
needed in semi-skilled or skilled jobs.\22\ We generally consider an 
individual with a 7th grade through the 11th grade level of formal 
education to have a limited education.
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    \22\ See 20 CFR 404.1564(b)(3) and 416.964(b)(3).
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    Marginal education means ability in reasoning, arithmetic, and 
language skills needed to do simple, unskilled jobs.\23\ We generally 
consider an individual with formal schooling at a 6th grade level or 
less to have a marginal education.
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    \23\ See 20 CFR 404.1564(b)(2) and 416.964(b)(2).
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    Illiteracy means the inability to read or write.\24\ We consider an 
individual illiterate if he or she cannot read or write a simple 
message, such as instructions or inventory lists, even though the 
individual can sign his or her name. Generally, we expect an illiterate 
individual to have little or no formal schooling.
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    \24\ See 20 CFR 404.1564(b)(1) and 416.964(b)(1).
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    Our rules explain that we consider inability to communicate in 
English an education category because the ability to speak, read, and 
understand English is generally learned or increased in school.\25\ Our 
current rules further explain that because English is the dominant 
language of this country, it may be difficult for someone who does not 
speak and understand English to do a job, regardless of the amount of 
education he or she may have in another language.\26\ Therefore, under 
our current rules, we consider an individual's ability to communicate 
in English when we evaluate what work, if any, he or she can do. We do 
not consider fluency in other languages.\27\
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    \25\ See 20 CFR 404.1564(b)(5) and 416.964(b)(5).
    \26\ This policy dates to 1978. See 43 FR 55349 (1978) (codified 
at 20 CFR 404.1507, 416.907 (1979)). Prior to that time, our rules 
did not specifically address the inability to communicate in English 
as a vocational factor. See 20 CFR 404.1502(e) and 416.902(e) 
(1978). Rather, since 1960, 25 FR 8100, 8101 (1960) (codified at 20 
CFR 404.1502(e) (1961)), the rules provided that education and 
training are factors in determining an individual's employment 
capacity, that a lack of formal schooling was not necessarily proof 
that an individual is uneducated, and that the kinds of 
responsibilities an individual had while working may indicate an 
ability to do more than unskilled work, even though an individual's 
formal education has been limited.
    \27\ See 20 CFR 404.1564(b)(5) and 416.964(b)(5).
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    Based on the organization of education categories in the current 
grid rules, an individual who is unable to

[[Page 1008]]

communicate in English may be considered under the grid rules 
specifying education level of ``illiterate or unable to communicate in 
English'' or under the broader category of ``limited or less'' or 
``marginal or none,'' depending on the individual's age and RFC.\28\
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    \28\ See 20 CFR 404.1564(b)(5) and 416.964(b)(5).
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    Under the grid rules, age 45 is the earliest point at which English 
language proficiency can make a difference in disability 
determination.\29\ In other words, the ``inability to communicate in 
English'' education category makes no difference as to the outcome of 
disability determination for individuals under 45 years of age. The 
grid rules are premised on the idea that for individuals under age 45, 
the inability to communicate in English does not pose a significant 
vocational limitation because being younger gives them an advantage in 
adjusting to other work.\30\ Our current rules are also based on the 
premise that English language proficiency has the least significance 
for unskilled work because most unskilled jobs involve working with 
things rather than with data or people.\31\
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    \29\ See 20 CFR 404, Subpart P Appendix 2, Table No. 1.
    \30\ See 20 CFR 404, Subpart P Appendix, rule 201.00(h)(2).
    \31\ See 20 CFR 404, Subpart P Appendix 2, rules 201(h)(4)(i) 
and 202(g).
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Why We Are Proposing To Revise Our Rules

    In 1978, we promulgated the five-step sequential evaluation process 
and adopted the grid rules, under which we consider the interaction of 
the individual's residual functional capacity, age, education, and work 
experience to determine whether or not an individual is disabled under 
our rules. We propose to revise the rules for how we consider an 
individual's education in relation to the inability to communicate in 
English for several reasons. Central to our proposed revisions is that 
our current rules do not take into account that claimants who cannot 
read, write, or speak English often have a formal education that may 
provide them with a vocational advantage. If a claimant meets the 
current criterion of ``inability to communicate in English,'' we 
generally disregard the amount of formal schooling the individual may 
have and evaluate the claim in the same manner as we do for a claim 
filed by an illiterate individual. Moreover, since we adopted these 
rules, the U.S. workforce has become more linguistically diverse and 
work opportunities have expanded for individuals who lack English 
proficiency. Further, our current rules treat English language 
proficiency as a relevant vocational factor even when claimants live in 
countries outside the U.S. or in U.S. territories where English is not 
a dominant language, leading to disparate results based on the location 
of the claimants.

Claimants Who Are Unable To Read, Write, or Speak English Often Have 
Formal Education That Could Provide a Vocational Advantage

    Claimants who report an inability to read, write, or speak English 
often report having a high school education or more. In fiscal year 
2016, approximately 49% of title II claimants and 39% of title XVI 
claimants who reported an inability to read, write, or speak 
English,\32\ also reported having completed a high school education or 
more.\33\ Further, the claimants who reported an inability to read, 
write, or speak English and who had at least a high school education 
had past work experience at higher skill levels, when compared to the 
claimants with less education.\34\ Our claims data indicate that higher 
levels of education may provide a vocational advantage, even for 
individuals who are unable to communicate in English.\35\
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    \32\ Under our current rule, these claimants may fall under the 
``illiterate'' or ``inability to communicate in English'' category. 
See 20 CFR 404.1564(b)(1) and (5), and 416.964(b)(1) and (5).
    \33\ This conclusion is based on our analysis of the initial 
determination data for all fiscal year 2016 claims in the U.S. Table 
1: Self-reported education level of claimants reporting an inability 
to read, write or speak English, Adult Initial Determinations, FY 
2016 (Table 1), available at regulations.gov as a supporting and 
related material for docket SSA-2017-0046. We note that in the 
fiscal year 2016, we adjudicated over 1.5 million and 1.2 million 
claims, respectively, under titles II and XVI at the initial level, 
and approximately 7.7% (118,815) title II claimants and 10.1% 
(128,084) of the title XVI claimants reported an inability to read, 
write, or speak English.
    \34\ This conclusion is based on our analysis of the title II 
claims allowed under the grid rules 201.17 and 202.09 at the initial 
level within the U.S. in fiscal year 2017. See Graph 1: Self-
reported education and Specific Vocational Preparation (SVP) level 
of past relevant work by Title II claimants reporting an inability 
to read, write, or speak English allowed under 201.17 or 202.09, 
Initial Determinations within U.S. and U.S. territories, FY 2017, 
available at regulations.gov as a supporting and related material 
for docket SSA-2017-0046.
    \35\ Id.
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The U.S. Workforce Has Become More Linguistically Diverse

    Since we adopted our current rules in 1978, linguistic diversity in 
the national economy has increased, which has changed the way the 
inability to communicate in English affects an individual's ability to 
work. For purposes of the data analysis in this NPRM, we refer to 
individuals who self-identified in the U.S. Census Bureau's (Census) 
American Community Survey as speaking a language other than English at 
home and speaking English ``well,'' ``not well,'' or ``not at all'' 
collectively as LEP.\36\ We selected this definition consistent with 
how the Census defines LEP.\37\
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    \36\ Our analysis is based on the data published by the Census, 
which is the primary source of data on languages spoken in the U.S. 
To obtain data on an individual's ability to speak English, Census 
has been asking three questions since 1980. The first of the three 
part-question asks if the respondent speaks a language other than 
English at home and gives the option to choose ``No, only speaks 
English'' or ``Yes.'' If the respondent selects ``Yes,'' the second 
part of the question asks the respondent to identify the language 
spoken at home. Finally, the third part of the question asks the 
respondent to rate his or her ability to speak English as ``very 
well,'' ``well,'' ``not well,'' and ``not at all.'' See Measuring 
America: The Decennial Censuses From 1790 to 2000, pp. 85, 92, and 
101 available at https://www.census.gov/prod/2002pubs/pol02-ma.pdf. 
In this NPRM, we refer to individuals speaking only English at home 
as individuals speaking ``only English.'' We refer to individuals 
speaking another language at home and speaking no English as 
individuals speaking English ``not at all'' or as individuals 
speaking no English.
    \37\ The U.S. Census Bureau defines LEP as individuals who speak 
English less than ``very well.'' U.S. Census Bureau American 
Community Survey (ACS), What State and Local Governments Need to 
Know, p. 12, n. 8, February 2009, https://www.census.gov/content/dam/Census/library/publications/2009/acs/ACSstateLocal.pdf.
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    In absolute numbers, the working age population (ages 25-64) with 
LEP increased from approximately 5.4 to 17.8 million between 1980 and 
2016, while more than doubling, from 5.1% to 10.5%, as a percentage of 
the population.\38\ Within this group, the number of individuals who 
spoke no English more than quadrupled from approximately 682,000 to 2.8 
million (representing growth from 0.6% to 1.7%, as a percentage of the 
working age population).\39\
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    \38\ See SSA Office of Research, Evaluation, and Statistics 
(ORES) analysis of 1980 Census and 2016 American Community Survey: 
English Proficiency, Table 1: Estimated working-age (25-64) 
population, by English proficiency and educational attainment, 1980 
and 2016 (ORES Table 1). Available at regulations.gov as a 
supporting and related material for docket SSA-2017-0046.
    \39\ Id. We note that ORES Tables refer to an individual 
speaking no English as an individual who ``does not speak English.''
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    Between 1980 and 2016, the number of non-English speaking workers 
in the 25-64 age range grew from approximately 373,000 to 1.7 
million.\40\ During the same period, the labor force participation rate 
for working age

[[Page 1009]]

individuals who speak no English increased from approximately 54.7% to 
61.5%.\41\ Notably, considering the working age population with ``less 
than high school diploma,'' the 2016 labor force participation rate for 
those speaking no English (60.5%) surpassed the labor force 
participation rate of those speaking ``only English'' (48.9%).\42\ In 
1980, the reverse was true; working age individuals with less than a 
high school diploma speaking only English had a 60.7% labor force 
participation rate that exceeded the 54.5% rate for those speaking no 
English.\43\
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    \40\ See ORES analysis of 1980 Census and 2016 American 
Community Survey: English Proficiency, Table 2: Estimated labor 
force participation of working-age population (25-64), by English 
proficiency and educational attainment, 1980 and 2016 (ORES Table 
2). Available at regulations.gov as a supporting and related 
material for docket SSA-2017-0046.
    \41\ Id.
    \42\ Id.
    \43\ Id.
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    The increase in labor force participation by individuals who lack 
English proficiency may be in part due to the increase in low-skilled 
work in the national economy. In 2014, our Office of Research, 
Evaluation, and Statistics (ORES) prepared an Evidence Synthesis 
consolidating information from research we commissioned and other 
available research for the purposes of modernizing our vocational 
regulations.\44\ ORES' literature review on the vocational factor of 
education indicates that with the introduction of new technology 
replacing moderately skilled workers, there are fewer moderately 
skilled jobs and higher numbers of low and high skilled jobs.\45\ 
Indeed, our claims data show that many claimants who may fall within 
the ``inability to communicate in English'' category have a history of 
working in occupations requiring lower level skills such as laborer, 
machine operator, janitor, cook, maintenance, and housekeeping.\46\ 
Consistent with our claims data and ORES' literature review, a 
Brookings Institution's (Brookings) study of LEP workers in the U.S. 
found that a lack of English proficiency does not generally prevent 
low-skilled workers from obtaining employment.\47\ Brookings' analysis 
shows that over 1 million individuals with LEP, including those who 
speak English ``not at all,'' are represented in each of the following 
occupations: Building and grounds cleaning and maintenance; production; 
construction and extraction; food preparation and serving; 
transportation and material moving; sales and related occupations; and 
office and administrative support.\48\ In the first four of the listed 
occupations, the workers with LEP make up more than 10% of total 
workers.\49\ In sum, both our claims data and external data indicate 
that work opportunities have expanded and labor force participation has 
increased for individuals who may fall within the ``inability to 
communicate in English'' education category.\50\
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    \44\ See the Extraction of SSA's Office of Research, Evaluation, 
and Statistics, ``Evidence Synthesis: The Use of Vocational Factors 
in the Disability Determination Process'' (Sept. 2014) (Extraction 
of Evidence Synthesis), available at regulations.gov as a supporting 
and related material for docket SSA-2017-0046. The Evidence 
Synthesis in its entirety is available at https://www.regulations.gov/docket?D=SSA-2014-0081.
    \45\ See the Extraction of Evidence Synthesis. See also 
Acemoglu, Daren, and Autor, David. 2011. ``Chapter 12--Skills, Tasks 
and Technologies: Implications for Employment and Earnings,'' in 
Ashenfelter, O, and Card, D, eds. Handbook of Labor Economics, 4(B): 
1043-1171 (available at regulations.gov as a supporting and related 
material for docket SSA-2017-0046).
    \46\ This is based on our analysis of over 2200 title II and XVI 
claims allowed under grid rules 201.17 and 202.09 in the fiscal year 
2017 only within the U.S. States and the District of Columbia. See 
Table 2: Top 10 past relevant work held by Title II and Title XVI 
claimants found disabled under the grid rules 201.17 or 202.09, 
Adult Initial Determinations within U.S., FY 2016 (Table 2). 
Available at regulations.gov as a supporting and related material 
for docket SSA-2017-0046.
    \47\ Jill H. Wilson, Investing in English Skills: The Limited 
English Proficient Workforce in U.S. Metropolitan Areas, 
Metropolitan Policy Program, at Brookings Institution (September 
2014), p. 10, available at https://www.brookings.edu/wp-content/uploads/2014/09/Srvy_EnglishSkills_Sep22.pdf.
    \48\ See Table 2. Occupations with at Least 1 Million LEP 
Workers, 2012. Id. at 13.
    \49\ Id.
    \50\ We acknowledge that the definition of LEP we used for 
purposes of the data analysis in this NPRM is not an exact match for 
the claimants who may fall within the ``inability to communicate in 
English'' education category. We also note that the ``inability to 
communicate in English'' education category is broader than what the 
ordinary meaning of the phrase ``inability to communicate'' may 
otherwise suggest and can apply to individuals who have no ability 
or some ability to communicate in English. Under our current rules, 
individuals who have some or even high capacity to read and write 
English may be found unable to communicate in English if they are 
unable to speak English. Alternatively, individuals who can speak 
some English but are unable to read English may be found unable to 
communicate in English. In POMS DI 25015.010 C.1.b we expressly 
state that an individual is unable to communicate in English when 
the individual cannot speak, understand, read ``or'' write a simple 
message in English. This means that even when an individual has some 
ability to do three out of four, the individual will still be 
categorized as unable to communicate in English if he or she cannot 
do all four. (https://secure.ssa.gov/apps10/poms.NSF/lnx/0425015010). The population described as LEP for the purposes of the 
data analysis in this NPRM is comparable to the claimant population 
who may fall under the ``inability to communicate in English'' 
education category.
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The International Reach of Our Title II Disability Program Has Steadily 
Expanded Since 1978

    Since we adopted our current education categories in 1978, we have 
established a network of bilateral Social Security agreements that 
coordinate the U.S. Social Security program with the comparable 
programs of other countries.\51\ These international Social Security 
agreements, often called ``totalization agreements,'' have two main 
purposes. First, they eliminate dual Social Security taxation, the 
situation that occurs when a worker from one country works in another 
country and is required to pay Social Security taxes to both countries 
on the same earnings. Second, the agreements help fill gaps in benefit 
protection for workers who have divided their careers between the U.S. 
and another country.
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    \51\ Additional information is available at https://www.ssa.gov/international/agreements_overview.html.
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    The international reach of our title II disability program has 
steadily expanded over the years. In 1978, we had a totalization 
agreement with only one country.\52\ We now have totalization 
agreements with 28 countries.\53\ English is the predominant language 
in only four of those countries (Canada, United Kingdom, Ireland, and 
Australia). When an individual files a disability claim based in part 
on eligibility under a totalization agreement, we use the same five-
step sequential evaluation process to determine whether he or she 
qualifies for disability benefits. Under our current rules, even if 
individuals applying for disability live in a country with a 
totalization agreement where English is not a dominant language, we 
must still classify them in the ``inability to communicate in English'' 
education category if they cannot speak, read, or write English. In 
light of the significant expansion of the totalization program since 
1978, we believe our proposal to consider individuals' education level 
would strengthen our international disability program abroad.
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    \52\ Id.
    \53\ Id. These countries are Italy, Germany, Switzerland, 
Belgium, Norway, Canada, the United Kingdom, Sweden, Spain, France, 
Portugal, Netherlands, Austria, Finland, Ireland, Luxembourg, 
Greece, South Korea, Chile, Australia, Japan, Denmark, the Czech 
Republic, Poland, the Slovak Republic, Hungary, Uruguay, and Brazil.
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OIG Audit Recommendation

    Eligibility for the title II disability program benefits extends to 
U.S. nationals in the U.S. territories, which include Puerto Rico, the 
U.S. Virgin Islands, Guam, the Northern Marianas Islands, and American 
Samoa. As we do for individuals in countries with totalization 
agreements, we currently consider the inability to communicate in 
English to be a vocationally relevant factor when adjudicating 
disability claims in all U.S. territories, regardless of whether 
English is the dominant

[[Page 1010]]

language.\54\ In 2015, OIG examined the trends associated with the 
application of existing grid rules involving the inability to 
communicate in English in Puerto Rico.\55\ OIG's audit of claims in 
Puerto Rico indicated that the grid rules involving the inability to 
communicate in English merit a closer examination.
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    \54\ Among the U.S. territories, English is dominant language 
only in the U.S. Virgin Islands. In the U.S. Virgin Islands, 71.6% 
speak English only, 17.2% speak Spanish or Spanish Creole, 8.6% 
speak French or French Creole, and 2.5% speak other languages. 
Available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=DEC_10_DPVI_VIDP2&prodType=table. As for 
the other territories, in American Samoa, 88.6% speak Samoan, 3.9% 
speak English only, 2.7% speak Tongan, 3% speak other Pacific Island 
languages, and 1.4% speak Asian languages. Available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=DEC_10_DPAS_ASDP2&prodType=table. In Guam, 
43.6% speak English only, 21.2% speak Philippine languages, 17.8% 
speak Chamorro, 10% speak other Pacific island languages, and 6.3% 
Asian languages. Available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=DEC_10_DPGU_GUDP2&prodType=table. In Puerto 
Rico, 94.3% speak Spanish and 5.5% speak English only. Available at 
https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_16_5YR_DP02PR&prodType=table. In U.S. 
Northern Mariana Islands, 32.8% speak Philippine languages, 24.1% 
speak Chamorro, 17% speak English only, 14.1% speak Asian languages, 
and 5.1% speak other Pacific Island languages. Available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=DEC_10_DPMP_MPDP2&prodType=table.
    \55\ Qualifying for Disability Benefits in Puerto Rico Based on 
an Inability to Speak English, available at https://oig.ssa.gov/sites/default/files/audit/full/pdf/A-12-13-13062_0.pdf.
---------------------------------------------------------------------------

    Following the audit, OIG recommended that we evaluate the 
appropriateness of the grid rules related to the inability to 
communicate in English when determining eligibility for disability for 
individuals similar to those evaluated in the audit. In response to the 
audit, we analyzed the fiscal year 2016 national data for claims 
adjudicated under the two main grid rules dealing with the inability to 
communicate in English (i.e., grid rules 201.17 and 202.09). In FY 
2016, our analysis revealed that claims from Puerto Rico (31.2%), 
California (19.2%), New York (11.22%), and Florida (5.8%) accounted for 
67.42% (1,677) of all initial title II allowances (2,487) made under 
these two grid rules.\56\ While claims allowed under the two grid rules 
in Puerto Rico accounted for nearly a third of all initial title II 
allowances under the two grid rules nationally, claims from Puerto Rico 
represented 1% of all of the 472,468 of initial title II disability 
allowances.\57\
---------------------------------------------------------------------------

    \56\ See Table 3: Title II Allowances under grid rules 201.17 or 
202.09, Adult Initial Determinations within U.S. and U.S. 
territories, FY 2016 (Table 3). Available at regulations.gov as a 
supporting and related material for docket SSA-2017-0046.
    \57\ Id.
---------------------------------------------------------------------------

    Our current policy on the inability to communicate in English 
explains the seemingly disproportionate number of allowances made under 
grid rules 201.17 and 202.09 in Puerto Rico. According to U.S. census 
data, 94.3% of the residents in Puerto Rico speak Spanish.\58\ 
Consistent with this data, in fiscal year 2016, 11,564 (86.8%) 
claimants in Puerto Rico reported an inability to read, write, or speak 
English.\59\ Among the claimants who reported an inability to read, 
write, or speak English, 9,167 (79.3%) had an education at high school 
or more.\60\
---------------------------------------------------------------------------

    \58\ Available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_16_5YR_DP02PR&prodType=table.
    \59\ See Chart 1: Claimants reporting an inability to read, 
write, or speak English Adult Initial Determinations, Puerto Rico, 
FY 2016 (Chart 1). Available at regulations.gov as a supporting and 
related material for docket SSA-2017-0046.
    \60\ See Chart 1.
---------------------------------------------------------------------------

    A subsequent analysis of our data from the fiscal year 2017 
similarly showed that 80.4% of the claimants who reported an inability 
to read, write, or speak English and were approved for disability under 
the grid rules 201.17 and 202.09 had high school education or more.\61\ 
Their work histories varied and included many professions requiring 
high levels of education and skills.\62\ These data indicate that an 
ability to communicate in English is not the most appropriate proxy for 
determining educational categorization.
---------------------------------------------------------------------------

    \61\ See Chart 2: Self-reported education level of claimants 
reporting an inability to read, write or speak English allowed under 
201.17 or 202.09, Adult Initial Determinations, Puerto Rico, FY 
2017. Available at regulations.gov as a supporting and related 
material for docket SSA-2017-0046.
    \62\ For example, our fiscal year 2017 data on Puerto Rico 
showed that work history of the claimants allowed under grid rules 
201.17 or 202.09 included jobs in nursing, education, management, 
community work, financial, and legal fields. See Table 4: Past 
relevant work of Title II claimants with 1 or more years of college 
education.
    Allowances under 201.17 or 202.09, Adult Initial Allowances, 
Puerto Rico, FY 2017, available regulations.gov as a supporting and 
related material for docket SSA-2017-0046.
---------------------------------------------------------------------------

ANPRM

    On September 14, 2015, we published an Advance Notice of Proposed 
Rule Making (ANPRM) in the Federal Register entitled ``Vocational 
Factors of Age, Education, and Work Experience in the Adult Disability 
Determination Process.'' \63\ In this ANPRM, we documented our 
longitudinal vocational factors research efforts from 1998 to 2014, and 
we solicited public comments and supporting data about how each of 
these vocational factors affects an individual's ability to adjust to 
other work.\64\ We said that we would consider all relevant public 
comments we received, but that we would not respond directly to 
them.\65\
---------------------------------------------------------------------------

    \63\ 80 FR 55050, available at https://www.regulations.gov/docket?D=SSA-2014-0081.
    \64\ Available at https://www.regulations.gov/docket?D=SSA-2014-0081.
    \65\ 80 FR at 55051.
---------------------------------------------------------------------------

    Although we did not specifically ask for comments on the 
``inability to communicate in English'' education category, 10 of the 
137 public comments submitted in response to the ANPRM, including those 
submitted after we extended the comment period, addressed that 
issue.\66\ Commenters expressed diverging opinions; these commenters 
did not present supportive data. For example, one commenter said that 
in today's economy, literacy in English has much less effect on an 
individual's ability to work because, in the opinion of the commenter, 
many non-English speakers are currently working throughout the U.S. 
economy. Another commenter noted that the inability to communicate in 
English would further erode an individual's ability to work and that it 
should be given more weight.
---------------------------------------------------------------------------

    \66\ 80 FR 66843, available at https://www.regulations.gov/docket?D=SSA-2014-0081.
---------------------------------------------------------------------------

Proposed Revisions

    For the reasons stated above, we propose to revise the rules we use 
to evaluate education as a vocational factor for individuals who 
communicate in a language other than English when we evaluate 
disability claims for adults under titles II and XVI of the Act. 
Specifically, we propose to change how we evaluate education for 
individuals who communicate in a language other than English by 
removing the education category ``inability to communicate in 
English.''
    Under the proposed regulations, we would not consider an 
individual's educational attainment to be at a lower education category 
than his or her highest numeric grade level solely because the 
education occurred in a language other than English, the individual 
participated in an English language learner program, such as an English 
as a second language class, or the individual is deemed to have LEP 
under current Federal standards.\67\ These proposed rules retain our

[[Page 1011]]

longstanding and well-supported recognition that more formal education, 
work experience, and training improve an individual's ability to adjust 
to other work.
---------------------------------------------------------------------------

    \67\ Individuals who do not speak English as their primary 
language and who have a limited ability to read, speak, write, or 
understand English can be limited English proficient, or LEP, 
available at https://www.lep.gov/faqs/faqs.html#OneQ1. We note that 
the definition of LEP provided by LEP.gov differs from the 
definition of LEP we used to present data as explained earlier.
---------------------------------------------------------------------------

    Instead, we would apply our current rules for determining an 
individual's education category for all claimants regardless of which 
language they use to communicate. We will use an individual's numerical 
grade level to determine the education category of the individual, and 
we may adjust an individual's education category if there is evidence 
that his or her attained educational abilities are higher or lower than 
the highest numerical grade level completed in school.
    We propose to make these and other minor conforming revisions in 20 
CFR 404.1564 and 416.964. We also propose to make other revisions to 
these sections to remove references to the English language.
    We also propose to revise the grid rules. First, we propose to 
revise all grid rules referencing an inability to communicate in 
English. Specifically, we would revise ``Illiterate or unable to 
communicate in English'' to ``Illiterate'' (201.17, 201.23, 202.09, 
202.16) and ``Limited or less--at least literate and able to 
communicate in English'' to ``Limited or Marginal, but not Illiterate'' 
(201.18, 201.24, 202.10, 202.17). For clarity and ease of use, we 
propose to revise ``Marginal or none'' to ``Marginal or Illiterate'' 
(203.01). Second, we propose to make other conforming changes 
throughout the grid rules consistent with the revisions discussed 
above.

How We Would Implement These Proposed Revisions

    If we adopt these proposed rules as final rules, we would begin to 
apply them to new applications, pending claims, and continuing 
disability reviews (CDR), as appropriate, as of the effective date of 
the final rules.\68\
---------------------------------------------------------------------------

    \68\ We would use the final rules beginning on their effective 
date. We would apply the final rules to new applications filed on or 
after the effective date, and to claims that are pending on and 
after the effective date. This means that we would use the final 
rules on and after their effective date in any case in which we make 
a determination or decision, including CDRs, as appropriate. See 20 
CFR 404.902 and 416.1402.
---------------------------------------------------------------------------

Effect on Current Regulatory and Subregulatory Guidance

    If we adopt these proposed rules as final rules, we would rescind 
Acquiescence Ruling (AR) 86-3(5), which applies to claims in the Fifth 
Circuit, because AR 86-3(5) would be inconsistent with the final 
rules.\69\ We may also rescind or replace other current Social Security 
Rulings to conform to the final rules. Where necessary, we would also 
issue updated subregulatory guidance.
---------------------------------------------------------------------------

    \69\ AR 86-3(5): Martinez v. Heckler, 735 F.2d 795 (5th Cir. 
1984) Disability Program--Individuals Who Are Illiterate and Unable 
To Communicate in English--Titles II and XVI of the Social Security 
Act addresses whether the Social Security disability grid rules 
applicable to individuals who are illiterate or unable to 
communicate in English are applicable to individuals who are 
illiterate and unable to communicate in English.
---------------------------------------------------------------------------

Rulemaking Analyses and Notices

    We will consider all comments we receive on or before the close of 
business on the comment closing date indicated above. The comments will 
be available for examination in the rulemaking docket for these rules 
at the above address. We will file comments received after the comment 
closing date in the docket and will consider those comments to the 
extent practicable. However, we will not respond specifically to 
untimely comments. We may publish a final rule at any time after close 
of the comment period.

Clarity of This Rule

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

Regulatory Procedures

Executive Order 12866, as Supplemented by Executive Order 13563

    We consulted with the Office of Management and Budget (OMB) and 
determined that this notice of proposed rulemaking meets the criteria 
for a significant regulatory action under Executive Order 12866, as 
supplemented by Executive Order 13563. Therefore, OMB reviewed it.
    We also determined that this final rule meets the plain language 
requirement of Executive Order 12866.

Executive Order 13132 (Federalism)

    We analyzed this proposed rule in accordance with the principles 
and criteria established by Executive Order 13132, and determined that 
the proposed rule will not have sufficient Federalism implications to 
warrant the preparation of a Federalism assessment. We also determined 
that this proposed rule will not preempt any State law or State 
regulation or affect the States' abilities to discharge traditional 
State governmental functions.

Executive Order 13771

    Based upon the criteria established in Executive Order 13771, we 
have identified the anticipated program cost and administrative costs 
as the following.
    Anticipated Costs to Our Programs:

    Our Office of the Chief Actuary estimates, based on the best 
available data, that this proposed rule, assuming it is finalized 
and implemented for all disability decisions completed after June 2, 
2019, would result in a reduction of about 6,500 OASDI beneficiary 
awards per year and 4,000 SSI recipient awards per year on average 
over the period FY 2019-28, with a corresponding reduction of $4.6 
billion in OASDI benefit payments and $0.8 billion in Federal SSI 
payments over the same period.

    Anticipated Administrative Costs to the Social Security 
Administration:

    The Office of Budget, Finance, and Management estimated 
administrative costs of $97 million for SSA and $24 million for DDS, 
totaling $121 million, for the 10-year period from FY 2019 through 
FY 2028.

Regulatory Flexibility Act

    We certify that this proposed rule will not have a significant 
economic impact on a substantial number of small entities because it 
affects individuals only. Therefore, the Regulatory Flexibility Act, as 
amended, does not require us to prepare a regulatory flexibility 
analysis.

Paperwork Reduction Act

    These proposed rules contain public reporting requirements in the 
regulation sections listed below, or will require changes in the forms 
listed below, which we did not previously clear through an existing 
Information Collection Request.

[[Page 1012]]



----------------------------------------------------------------------------------------------------------------
                                 Description of      Number of                    Average burden
 OMB No., Form No., Regulation  public reporting    respondents    Frequency of    per response      Estimated
            section                requirement      (annually)       response        (minutes)     annual burden
----------------------------------------------------------------------------------------------------------------
0960-0072; SSA-454............  Continuing               541,000               1              60         541,000
                                 Disability
                                 Review Report.
0960-0579; SSA-3368...........  Disability             2,258,510               1              95       3,575,974
                                 Report--Adult.
0960-0681; SSA-3373...........  Function Report--      1,734,635               1              61       1,763,546
                                 Adult.
0960-0635; SSA-3380...........  Function Report--        709,700               1              61         721,528
                                 Adult Third
                                 Party.
20 CFR 416.964; 20 CFR
 404.1564
0960-0144; SSA-3441...........  Disability               637,431               1              50         531,193
                                 Report-Appeal.
                                                 ---------------------------------------------------------------
    Total.....................  ................       5,881,276  ..............  ..............       7,133,241
----------------------------------------------------------------------------------------------------------------

    SSA submitted an Information Collection Request for clearance to 
OMB. We are soliciting comments on the burden estimate; the need for 
the information; its practical utility; ways to enhance its quality, 
utility, and clarity; and ways to minimize the burden on respondents, 
including the use of automated techniques or other forms of information 
technology. If you would like to submit comments, please send them to 
the following locations:

Office of Management and Budget, Attn: Desk Officer for SSA, Fax 
Number: 202-395-6974, Email address: OIRA_Submission@omb.eop.gov
Social Security Administration, OLCA, Attn: Reports Clearance Director, 
3100 West High Rise, 6401 Security Blvd., Baltimore, MD 21235, Fax: 
410-966-2830, Email address: OR.Reports.Clearance@ssa.gov

You can submit comments until April 2, 2019, which is 60 days after the 
publication of this notice. To receive a copy of the OMB clearance 
package, contact the SSA Reports Clearance Officer using any of the 
above contact methods. We prefer to receive comments by email or fax.

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

List of Subjects

20 CFR Part 404

    Administrative practice and procedure, Blind, Disability benefits, 
Old-Age, Survivors, and Disability Insurance, Reporting and 
recordkeeping requirements, Social Security.

20 CFR Part 416

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

    Dated: January 2, 2019.
Nancy Berryhill,
Acting Commissioner of Social Security.

    For the reasons set out in the preamble, we propose to amend 20 CFR 
part 404 subpart P and part 416 subpart I as set forth below:

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

Subpart P--Determining Disability and Blindness

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

    Authority: Secs. 202, 205(a)-(b) and (d)-(h), 216(i), 221(a) and 
(h)-(j), 222(c), 223, 225, and 702(a)(5) of the Social Security Act 
(42 U.S.C. 402, 405(a)-(b) and (d)-(h), 416(i), 421(a) and (h)-(j), 
422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 110 
Stat. 2105, 2189; sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 
U.S.C. 902 note).

0
2. Amend Sec.  404.1564 by:
0
a. Removing the sixth sentence of paragraph (b) introductory text and 
paragraph (b)(5);
0
b. Redesignating paragraph (b)(6) as paragraph (c), and
0
c. Revising the first sentence of newly redesignated paragraph (c).
    The revision to read as follows:


Sec.  404.1564  Your education as a vocational factor.

* * * * *
    (c) Information about your education. We will ask you how long you 
attended school, and whether you are able to understand, read, and 
write, and do at least simple arithmetic calculations. * * *
0
3. Amend Appendix 2 to Subpart P of Part 404 by:
0
a. Revising 201.00(h)(1)(iv);
0
b. Revising the second sentence of 201.00(h)(2);
0
c. Revising In 201.00(h)(4)(i);
0
d. In 201.00 Table No. 1, revise rules 201.17, 201.18, 201.23, and 
201.24;
0
e. Revising 202.00(d) and (g)
0
f. In 202.00 Table No 2, revising rules 202.09, 202.10, 202.16, and 
202.17; and
0
g. In 203.00 Table No. 3, revising rule 203.01.
    The revisions to read as follows:

Appendix 2 to Subpart P of Part 404--

* * * * *
    201.00 * * *
    (h)(1) * * *
    (iv) Are illiterate.
    (2) * * * It is usually not a significant factor in limiting 
such individual's ability to make an adjustment to other work, 
including an adjustment to unskilled sedentary work, even when the 
individuals are illiterate.
    * * *
    (4) * * *
    (i) While illiteracy may significantly limit an individual's 
vocational scope, the primary work functions in most unskilled 
occupations involve working with things (rather than with data or 
people). In these work functions, education has the least 
significance. Similarly the lack of relevant work experience would 
have little significance since the bulk of unskilled jobs require no 
qualifying work experience. Thus, the functional capacity for a full 
range of sedentary work represents sufficient numbers of jobs to 
indicate substantial vocational scope for those individuals age 18-
44, even if they are illiterate.

[[Page 1013]]



   Table No. 1--Residual Functional Capacity--Maximum Sustained Work Capability Limited to Sedentary Work as a
                              Result of Severe Medically Determinable Impairment(S)
----------------------------------------------------------------------------------------------------------------
                                                                             Previous work
              Rule                        Age              Education          experience           Decision
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
201.17..........................  Younger individual  Illiterate........  Unskilled or none.  Disabled.
                                   age 45-49.
201.18..........................  ......do..........  Limited or          ......do..........  Not disabled.*
                                                       Marginal, but not
                                                       Illiterate.
 
                                                  * * * * * * *
201.23..........................  Younger individual  Illiterate........  Unskilled or none.  Do.\4\
                                   age 18-44.
201.24..........................  ......do..........  Limited or          ......do..........  Do.\4\
                                                       Marginal, but not
                                                       Illiterate.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
    202.00
* * * * *
    (d) A finding of disabled is warranted where the same factors in 
paragraph (c) of this section regarding education and previous work 
experience are present, but where age, though not advanced, is a 
factor which significantly limits vocational adaptability (i.e., 
closely approaching advanced age, 50-54) and an individual's 
vocational scope is further significantly limited by illiteracy.
* * * * *
    (g) While illiteracy may significantly limit an individual's 
vocational scope, the primary work functions in most unskilled 
occupations relate to working with things (rather than data or 
people). In these work functions, education has the least 
significance. Similarly, the lack of relevant work experience would 
have little significance since the bulk of unskilled jobs require no 
qualifying work experience. The capability for light work, which 
includes the ability to do sedentary work, represents the capability 
for substantial numbers of such jobs. This, in turn, represents 
substantial vocational scope for younger individuals (age 18-49), 
even if they are illiterate.

 Table No. 2--Residual Functional Capacity--Maximum Sustained Work Capability Limited to Light Work as a Result
                                 of Severe Medically Determinable Impairment(S)
----------------------------------------------------------------------------------------------------------------
                                                                             Previous work
              Rule                        Age              Education          experience           Decision
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
202.09..........................  Closely             Illiterate........  Unskilled or none.  Disabled.
                                   approaching
                                   advanced age.
202.10..........................  ......do..........  Limited or          ......do..........  Not disabled.
                                                       Marginal, but not
                                                       Illiterate.
 
                                                  * * * * * * *
202.16..........................  Younger individual  Illiterate........  Unskilled or none.  Do.
202.17..........................  ......do..........  Limited or          ......do..........  Do.
                                                       Marginal, but not
                                                       Illiterate.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

    203.00
* * * * *

 Table No. 3--Residual Functional Capacity--Maximum Sustained Work Capability Limited to Medium Work as a Result
                                 of Severe Medically Determinable Impairment(S)
----------------------------------------------------------------------------------------------------------------
                                                                             Previous work
              Rule                        Age              Education          experience           Decision
----------------------------------------------------------------------------------------------------------------
203.01..........................  *.................  Marginal or         *.................  *
                                                       Illiterate.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


[[Page 1014]]

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

Subpart I--Determinnig Disability and Blindness

0
8. The authority citation for subpart I of part 416 continues to read 
as follows:

     Authority:  Secs. 221(m), 702(a)(5), 1611, 1614, 1619, 1631(a), 
(c), (d)(1), and (p), and 1633 of the Social Security Act (42 U.S.C. 
421(m), 902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), (d)(1), and 
(p), and 1383b); secs. 4(c) and 5, 6(c)-(e), 14(a), and 15, Pub. L. 
98-460, 98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note, 423 
note, and 1382h note).

0
9. Amend Sec.  416.964 by
0
a. Removing the sixth sentence of paragraph (b) introductory text and 
paragraph (b)(5);
0
b. Redesignating paragraph (b)(6) as paragraph (c); and
0
c. Revising the first sentence of newly redesignated paragraph (c)
    The revision to read as follows:


Sec.  416.964  Your education as a vocational factor.

    * * *
    (c) Information about your education. We will ask you how long you 
attended school, and whether you are able to understand, read, and 
write, and do at least simple arithmetic calculations. * * *
[FR Doc. 2019-00250 Filed 1-31-19; 8:45 am]
 BILLING CODE 4191-02-P