81 FR 90987 - Ensuring Program Uniformity at the Hearing and Appeals Council Levels of the Administrative Review Process

SOCIAL SECURITY ADMINISTRATION

Federal Register Volume 81, Issue 242 (December 16, 2016)

Page Range		90987-90997
FR Document		2016-30103

We are revising our rules so that more of our procedures at the hearing and Appeals Council levels of our administrative review process are consistent nationwide. We anticipate that these nationally consistent procedures will enable us to administer our disability programs more efficiently and better serve the public.

Federal Register, Volume 81 Issue 242 (Friday, December 16, 2016)

[Federal Register Volume 81, Number 242 (Friday, December 16, 2016)]
[Rules and Regulations]
[Pages 90987-90997]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2016-30103]

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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404, 405 and 416

[Docket No. SSA-2014-0052]
RIN 0960-AH71

Ensuring Program Uniformity at the Hearing and Appeals Council
Levels of the Administrative Review Process

AGENCY: Social Security Administration.

ACTION: Final rule.

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SUMMARY: We are revising our rules so that more of our procedures at
the hearing and Appeals Council levels of our administrative review
process are consistent nationwide. We anticipate that these nationally
consistent procedures will enable us to administer our disability
programs more efficiently and better serve the public.

DATES: This final rule will be effective on January 17, 2017. However,
compliance is not required until May 1, 2017.

FOR FURTHER INFORMATION CONTACT: Patrick McGuire, Office of Appellate
Operations, Social Security Administration, 5107 Leesburg Pike, Falls
Church, VA 22041, (703) 605-7100. For information on eligibility or
filing for benefits, call our national toll-free number, 1-800-772-1213
or TTY 1-800-325-0778, or visit our Internet site, Social Security
Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION

Background

We are revising and making final the rules for creating nationally
uniform hearing and Appeals Council procedures, which we proposed in a
notice of proposed rulemaking (NPRM) published in the Federal Register
on July 12, 2016 (81 FR 45079). In the preamble to the NPRM, we
discussed the changes we proposed from our current rules and our
reasons for proposing those changes. In the NPRM, we proposed revisions
to: (1) The time frame for notifying claimants of a hearing date; (2)
the information in our hearing notices; (3) the period when we require
claimants to inform us about or submit written evidence, written
statements, objections to the issues, and subpoena requests; (4) what
constitutes the official record; and (5) the manner in which the
Appeals Council would consider additional evidence.
As we explained in the preamble to our NPRM, we proposed these
changes to ensure national consistency in our policy and procedures and
improve accuracy and efficiency in our administrative review process.
We expect this final rule will positively affect our ability to manage
our workloads and lead to better public service. Interested readers may
refer to the preamble to the NPRM, available at http://www.regulations.gov under docket number SSA-2014-0052.

What changes are we making from the NPRM?

We are making several changes in this final rule from the NPRM
based on some of the public comments we received. We briefly outline
those changes here and provide additional detail on the changes in the
comment and response section that follows. We are also making minor
editorial changes throughout this final rule. For the reader's ease of
review, we refer to the general requirement that all evidence,
objections, or written statements be submitted at least 5 business days
before the date of the hearing as the ``5-day requirement.'' We adopted
the following changes from our NPRM in this final rule:
We lengthened the time frame for notifying claimants of a
hearing date in

[[Page 90988]]

20 CFR 404.938 and 416.1438 from at least 60 days to at least 75 days;
In 20 CFR 404.935(b)(3)(iv) and 416.1435(b)(3)(iv), we
removed the phrase ``through no fault of your own'' to reduce the
evidentiary burden on claimants who are unable to provide evidence;
We clarified that the circumstances set forth in 20 CFR
404.935(b)(3)(i) to (b)(3)(iv) and 416.1435(b)(3)(i) to (b)(3)(iv) are
merely examples and do not constitute an exhaustive list;
We added the same exceptions to the 5-day requirement that
we proposed for the submission of evidence in 20 CFR 404.935 and
416.1435 to the deadlines related to objecting to the issues (20 CFR
404.939 and 416.1439), presenting written statements (20 CFR 404.949
and 416.1449), and submitting subpoenas (20 CFR 404.950(d)(2) and
416.1450(d)(2));
We added language to 20 CFR 404.949 and 416.1449 to
clarify that the 5-day requirement applies only to pre-hearing written
statements, not to post-hearing written statements;
We added an example of an exception for submitting
additional evidence to the Appeals Council in 20 CFR 404.970(b)(3)(v)
and 416.1470(b)(3)(v);
We reorganized paragraphs (a)(5) and (b) of 20 CFR 404.970
and 416.1470;
We removed proposed subsection 20 CFR 404.970(d) and
416.1470(d);
We added clarifying cross-references to 20 CFR 404.900 and
416.1400 and 20 CFR 404.929 and 416.1429 to place the 5-day requirement
in 20 CFR 404.935 and 416.1435 in context; and,
We broadened the existing cross-reference in 20 CFR
404.968 and 416.1468 and 20 CFR 404.979 and 416.1479 to reference the
entire section of 20 CFR 404.970 and 416.1470, and we removed the cross
reference to 20 CFR 404.976 and 416.1476 in 20 CFR 404.979 and
416.1479.

Public Comments

We initially provided a 30-day comment period that would have ended
on August 11, 2016. We subsequently extended the comment period for an
additional 15 days, until August 26, 2016 (81 FR 51412). We received
154 comments on our proposed rule from the public, interested advocacy
groups, and several members of Congress. We did not consider six
comments because they either came from employees who commented in their
official employment capacity, which is a violation of our policy, or
they were outside the scope of this rulemaking. We published and
carefully considered the remaining 148 comments and, where appropriate,
made changes in response to these comments.
Below, we summarize and respond to the comments submitted on the
proposed rule, and respond to the significant issues relevant to this
rulemaking. We do not respond to comments that are outside the scope of
this rulemaking proceeding.

Hearing Notice Requirement

Comment: Several commenters supported our proposal to provide more
advance notice of a hearing, but asked that we adopt the 75-day advance
notice requirement currently in place in the Boston region, rather than
the 60-day advance notice we proposed in the NPRM. Several of the
commenters stated that earlier notice would allow claimants to: (1)
Obtain and submit the information and evidence, especially when a
medical provider is uncooperative; (2) make arrangements for
transportation to the hearing; (3) take into account time frames under
the regulations implementing the Health Insurance Portability and
Accountability Act (HIPAA) that provide an entity up to 60 days before
it must produce records (45 CFR 164.524(b)); and (4) avoid a
postponement of hearing due to non-receipt of medical records. Several
other commenters said that even a 75-day notice requirement is
insufficient, and that we should provide notice 90 to 120 days in
advance of a hearing.
Response: We recognize that claimants and representatives may
sometimes face challenges in acquiring medical records. In response to
multiple advocate comments indicating a preference for 75 days' advance
notice of a hearing instead of 60 days, we are revising the final rule
to provide 75 days' advance notice. Since we already have approximately
a decade of experience in using the 75-day advance notice period in the
Boston Region, we believe its expansion nationwide is justified.
We proposed a 60-day period in our NPRM because we believed it
would promote the efficiency of our hearing process (81 FR at 45081).
However, we recognize the concerns that that commenters raised,
including stated concerns about the adequacy of a 60-day advance notice
requirement in light of the timeframe an entity has to provide evidence
to an individual under the HIPAA regulations. In order to minimize the
burden on claimants, we have decided to adopt the commenters'
suggestion that we continue to provide at least 75-day advance notice
of a hearing, as we have done under the rules we have been applying in
the Boston region since 2006.
Some commenters requested that we extend the advance notice period
to 90 or 120 days instead of the proposed 60-days advance notice. We
have decided not to extend the advance notice period to 90 or 120 days,
because providing a hearing date this far in advance would increase the
likelihood that an adjudicator's schedule will change by the scheduled
hearing date. Moreover, in contrast to the 75-day period, we have no
current model to support the use of a longer time period.

Exceptions to the 5-Day Requirement

Comment: Several commenters asked that we retain the exception in
20 CFR 404.935(b)(3)(iv) in the final rule because it recognized the
difficulties of obtaining medical evidence, while another commenter
suggested we eliminate this exception because it was vague and contrary
to the intent and purpose of the proposed rule. Several commenters
expressed concerns about our exceptions to the 5-day requirement
because they were too narrowly defined, too subjective, and would
increase our workloads. Other commenters suggested that we add
additional exceptions, such as when the claimant is homeless or lacks
representation. One commenter requested that the Appeals Council also
find good cause for submitting evidence after the 5-day requirement if
the claimant was unrepresented or homeless at the hearing level.
Response: We provide examples of exceptions to the 5-day
requirement in final 20 CFR 404.935(b)(3) and 416.1435(b)(3) and have
clarified that we did not intend for them to be all-inclusive or to
exclude other extenuating circumstances that may result in a claimant
being unable to meet the 5-day requirement. To clarify this point, we
changed the regulatory text to state that ``[e]xamples include, but are
not limited to'' the outlined exceptions. Because circumstances vary,
we determine whether a claimant qualifies for an exception on a case-
by-case basis.
We do not anticipate that evaluating requests for exceptions to the
5-day requirement will increase our workloads. We recognize that
compliance with the 5-day requirement will not be possible in all
situations; however, based on our experience in the Boston region, we
expect that providing at least 75 days' advance notice of a hearing
will significantly increase the number of times evidence is obtained
and submitted at least 5 business days before the hearing. We also note
that in our experience the need to evaluate

[[Page 90989]]

requests to submit evidence pursuant to one of the exceptions has not
caused workload spikes in our Boston region, where a 5-day requirement
has been in place for more than a decade. When a claimant or appointed
representative is aware that he or she will need more time to submit
evidence in accordance with one of the exceptions, we expect that he or
she will provide us with the necessary information in advance. To do
so, the claimant or representative should notify the administrative law
judge (ALJ) of what the evidence generally consists of and the expected
volume of evidence (e.g., one visit to a treating physician or a one-
week hospital stay). When the claimant or his or her representative
timely provides this information to the ALJ, we expect that evaluating
the request for an exception will likely be very simple.
The fact that a claimant is homeless or lacks representation does
not automatically excuse him or her from complying with our rules.
However, situations such as these may result in circumstances that
warrant an exception to the 5-day requirement. We will evaluate these
circumstances carefully on a case-by-case basis under the exceptions
described in the final rule.
Comment: Commenters who represented advocacy groups noted that our
proposed rule did not include exceptions to deadline requirements for
objecting to the issues (20 CFR 404.939 and 416.1439), presenting
written statements (20 CFR 404.949 and 416.1449), and submitting
subpoenas (20 CFR 404.950(d)(2) and 416.950(d)(2)). Some commenters had
concerns that the 5-day requirement, as applied to objections to the
issues, could force representatives to develop boilerplate notices that
list all possible objections in every case.
Response: We agree with the commenters' concerns, and we have added
exceptions for the deadlines related to objecting to the issues (20 CFR
404.939 and 416.1439), presenting written statements (20 CFR 404.949
and 416.1449), and submitting subpoenas (20 CFR 404.950(d)(2) and
416.1450(d)(2)). The exceptions in 20 CFR 404.939 and 416.1439 should
eliminate the need for representatives to develop boilerplate notices.

Appeals Council Authority

Comment: While one commenter supported the proposal in subsections
20 CFR 404.970(d) and 416.1470(d) that the Appeals Council conduct
hearings to develop evidence, other commenters expressed concern about
the proposal. A few of these commenters stated it was an expansion of
the Appeals Council's authority and was inconsistent with the
Administrative Procedure Act. Other commenters stated that we did not
provide an adequate explanation of the authority for such hearings.
Response: Since the beginning of our hearing process in 1940, our
regulations (currently found in sections 20 CFR 404.956 and 416.1456)
have authorized the Appeals Council to remove a hearing request from an
ALJ and conduct the hearing proceedings, using the rules that ALJs
apply. We proposed to revise sections 20 CFR 404.970 and 416.1470 to
clarify the Appeals Council's authority in this area. Although we
disagree with some of the comments, including concerns that the
proposal lacked legal support, we understand the concerns the
commenters raised regarding this proposal. As a result, we have decided
to remove the rule we proposed in subsections 404.970(d) and
416.1470(d). The Appeals Council will continue to exercise its
authority to develop evidence in accordance with 20 CFR 404.976(b) and
416.1446(b).

``Inform'' Option

Comment: Several commenters stated the proposed rule may have
unintended consequences because appointed representatives may rely on
the ``inform'' option in 20 CFR 404.935 and 416.1435 and in 20 CFR
404.1512 and 416.912 to avoid developing evidence. A few commenters
stated if we retain the ``inform'' option, we should require the
claimant to inform the hearing office earlier so there would be time to
develop the evidence and avoid unnecessary supplemental hearings.
Response: On April 20, 2015, we implemented a final rule that
requires a claimant to ``inform us about or submit all evidence known
to you that relates to whether you are blind or disabled.'' 81 FR
14828. As we stated in the preamble to that proposed rule, we
specifically added this option because we did not intend to shift our
burden to develop the record to claimants. In the proposed rule, as in
this final rule, we recognize that some individuals, many of whom do
not have appointed representatives, require our assistance in obtaining
medical evidence needed to adjudicate their claims. Claimants who are
unable to obtain evidence necessary to adjudicate their claims may
inform us of this difficulty and we will continue to seek out evidence
on their behalf to develop the record for their hearing. By adopting
this final rule, we have not changed our longstanding policy of
assisting claimants in developing the record. At the hearing level,
this policy has been explicitly set forth in our sub-regulatory
instructions.
Because most claimants are represented at the hearing level, and
because we are providing more advance notice of a hearing than we have
in the past, we expect to significantly reduce the number of postponed
hearings or supplemental hearings needed based on evidence that was
available at least 5 business days before the hearing.
In our experience, the vast majority of representatives act
ethically in regard to evidence development and make good faith efforts
to assist claimants in obtaining and submitting the required evidence
before a hearing, as required under 20 CFR 404.1740(b)(2) and
416.1540(b)(2). Therefore, we do not expect the ``inform'' option to
significantly affect our administrative processes.
In those circumstances in which hearing offices assist
unrepresented claimants in developing evidence, our sub-regulatory
instructions will clarify that employees in our hearing offices should
undertake development as early as possible to reduce the number of
continuances or postponed hearings.

5-Day Requirement

Comment: Some commenters thought the 5-day requirement in the
proposed rules was inconsistent with our duty to make eligibility
decisions based on the evidence presented at the hearing.
Response: In developing these rules, we were guided by the two
principles that we have always applied when we make decisions regarding
our programs: As the Supreme Court has observed, the Social Security
system ``must be fair--and it must work.'' \1\ These final rules
appropriately balance these two guiding principles. These rules are
fair because they provide the claimant with more advance notice of his
or her hearing, and they provide appropriate exceptions to the 5-day
requirement. At the same time, the 5-day requirement promotes the
efficiency of our hearings process and allows it to work more
effectively by ensuring that ALJs have a more complete evidentiary
record when they hold hearings. Striking such a balance in our rules is
of paramount importance to us. That balance would not be present if, as
some commenters suggested, we merely gave claimants more advance notice
of a hearing, without the 5-day requirement. Conversely, that balance
would not be present if we simply imposed a 5-day requirement, without
giving a claimant more advance notice of a hearing. Given the size of
our

[[Page 90990]]

hearings workloads,\2\ where the need for efficiency is ``self-
evident,'' \3\ these final rules appropriately balance the twin
concerns of fairness and efficiency that always guide us.
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\1\ Richardson v. Perales, 402 U.S. 389, 399 (1971).
\2\ See Annual Statistical Supplement to the Social Security
Bulletin, 2015, Table 2.F9, at page 2.81 (April 2016) (setting out
the number of hearing level receipts, dispositions, and end-of-year
pending cases for fiscal years 012-2014).
\3\ See Barnhart v. Thomas, 540 U.S. 20, 28-29 (2003) (``As we
have observed, `[t]he Social Security hearing system is `probably
the largest adjudicative agency in the western world.' . . . The
need for efficiency is self-evident.' '') (quoting Heckler v.
Campbell, 461 U.S. 458, 461 n.2 (1983)).
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In publishing this final rule, we do not intend to change the
purpose of a hearing, where an ALJ looks fully into the issues and
obtains oral testimony from the claimant and witnesses, if any.
Additionally, our final rule contemplates that some circumstances may
warrant the introduction of new evidence at or after the hearing, and
includes appropriate exceptions to accommodate these circumstances.
Thus, under our final rule, adjudicators will continue to make
decisions based on the evidence of record, including the evidence
adduced at the hearing. However, we expect that our final rule will
help to ensure that evidentiary records are more complete at the time
of the administrative hearing, which should reduce the need for post-
hearing proceedings and help us provide better, more timely service to
all claimants.
Comment: Some commenters stated that the philosophical
underpinnings of the rule in 20 CFR 404.1512 is that ALJs must have all
evidence that is available at the time of the hearing so they can reach
the correct decision. The commenters thought that the proposed rule
conflicted with our rule requiring claimants to submit all evidence.
The commenters noted that it would not make sense to place a duty on
the claimant to submit evidence when at the same time, rules are
created that would allow an ALJ not to consider that evidence.
Response: Our approach with this rule is tied to the
``philosophical underpinnings'' of 20 CFR 404.1512 and 416.912, which
describe a claimant's ongoing duty to ``inform us about or submit all
evidence known to you that relates to whether or not you are blind or
disabled.'' This rule will ensure claimants have the benefit of a fully
developed record at the time our ALJs conduct their hearings. We
recognize that there will be circumstances in which claimants cannot
produce evidence at least 5 business days before the hearing. As stated
above, we have included appropriate exceptions to the 5-day requirement
to ensure fairness when a claimant or his or her representative
actively and diligently seeks evidence but is unable to obtain it. To
bolster this point, in 20 CFR 404.935(b)(3)(iv) and 416.1435(b)(3)(iv),
we removed the phrase ``through no fault of your own'' to ensure that
our adjudicators interpret this exception consistent with our intent.
We intend the words ``actively'' and ``diligently'' to be interpreted
using their ordinary English usage. When a claimant or representative
shows that he or she made a good faith effort to timely request,
obtain, and submit evidence, but he or she did not receive the evidence
in time to submit it at least 5 business days before the hearing
because of circumstances outside his or her control, we expect that our
adjudicators would find that this standard is met.
Some commenters perceived this rule as an exclusionary procedure
designed to prevent the introduction of medical records at the expense
of the claimant's case. Our experience is more consistent with one of
the commenters from the Boston region who noted that most ALJs
``effectively draw the line between evidence which had been available
but was not submitted, and previously unavailable evidence'' and ``do
not use the 5-day rule as a punitive device against claimants or their
representatives.'' Further, in those situations in which an ALJ in the
Boston region did not correctly find reason to accept evidence outside
the 5-day time frame, the Appeals Council granted review in order to
consider the information on appeal where the evidence raised a
reasonable probability of changing the outcome of the case. This
important practice will continue in our final rule.
Comment: Some commenters pointed out that the 5-day requirement
would preclude a claimant from submitting evidence at the hearing or
Appeals Council level of the administrative process, particularly if a
claimant is illiterate or does not speak English, or is without an
appointed representative or obtained a representative shortly before
the hearing date, and this exclusion was an undue burden, fundamentally
unfair, and disadvantaged claimants in favor of adjudicators.
Response: We expect that this final rule will enhance our decision-
making process and allow us to provide more timely decisions to
claimants. We do not intend to unduly burden claimants with this rule.
By asking claimants to inform us about or submit evidence at least 5
business days before the hearing date, we expect that evidentiary
records will be more complete and comprehensive at the time of the
scheduled hearing. In turn, this should facilitate the ALJ's ability to
look fully into the issues at the hearing and produce a timely,
accurate decision. As stated above, we will continue our longstanding
practice of assisting those individuals who, for various reasons, are
unable to develop the record themselves. This rule also incorporates
appropriate exceptions to take into account for the needs of
individuals who, due to unique circumstances, do not fully understand
or are not capable of adhering to our requirements or requests.
Comment: Some commenters said that the proposed rule makes the
administrative review process more formal and adversarial. Commenters
also asked the agency to clarify that if a claimant informs an ALJ
about evidence at least 5 business days before the hearing, the ALJ
must consider the evidence regardless of whether an exception exists.
Commenters said that the proposed rule overlooked that an ALJ
adjudicates a case through the date of his or her decision, and that he
or she needs evidence of ongoing treatment to adjudicate the case.
Commenters also said the proposed rule did not provide the claimant
with an opportunity to submit evidence to rebut other evidence produced
at or after the hearing or permit an ALJ to hold the record open when a
new issue arises during the hearing.
Response: From our experience, similar rules that applied in the
Boston region for approximately a decade have not resulted in a more
adversarial process or misunderstandings from the public. Moreover,
many of our other rules that apply nationwide impose deadlines or other
requirements on the public, such as the deadline to appeal a
determination or decision. While processing a case, we frequently
request that individuals submit a response or provide us with
information within certain timeframes. We have not found that these
provisions make our process more adversarial. Rather, like this final
rule, they are necessary for efficient administration of our programs.
If a claimant informs an ALJ about evidence 5 or more days before
the hearing, there would be no need for the ALJ to find that an
exception applies, because the claimant notified us prior to the
deadline.
While it is true that, in many cases, an ALJ adjudicates the case
through the date of the hearing decision, our rule is not intended to
prevent a claimant from submitting evidence related to ongoing
treatment. Rather, we expect that

[[Page 90991]]

evidence of ongoing treatment, which was unavailable at least 5
business days before the hearing, would qualify under the exception in
20 CFR 404.935(b)(3) and 416.1435(b)(3).
Similarly, if an ALJ introduces new evidence at or after a hearing,
the claimant could use the exception in 20 CFR 404.935(b)(3) and
416.1435(b)(3) to submit rebuttal evidence. The claimant could also
rebut evidence introduced at or after the hearing by submitting a
written statement to the ALJ. As previously mentioned, we added
language to 20 CFR 404.949 and 416.1449 to clarify that the 5-day
requirement applies only to pre-hearing written statements, not to
post-hearing written statements.
Comment: Some commenters stated that the 5-day requirement could
affect a representative's ability to prepare useful and persuasive pre-
hearing statements, given that the Office of Disability Adjudication
and Review (ODAR) frequently exhibits files very close to the hearing
date.
Response: For the same reasons we are adopting a 5-day requirement
for available evidence, we are adopting this requirement for pre-
hearing written statements to ensure that an ALJ has the benefit of
reviewing arguments before the hearing. This will allow the ALJ to be
fully aware of any unresolved issue(s) that a claimant is raising and
which the ALJ may need to address at the hearing. While we are
sympathetic to the commenters who noted exhibit numbers were unlikely
to be available at least 5 business days before the hearing, we note
that this issue existed under our prior rules as well and therefore,
this convenience does not outweigh our need for a complete case file
before the hearing.
Comment: Some commenters stated that the 5-day requirement could
disadvantage claimants who hire representatives shortly before the
hearing date.
Response: We reiterate that we expect all appointed representatives
to make good faith efforts to assist claimants in obtaining and
submitting the required evidence before a hearing, as required under 20
CFR 404.1740(b)(2) and 416.1540(b)(2). However, we have included
appropriate exceptions to the 5-day requirement to ensure fairness when
a claimant or his or her representative actively and diligently seeks
evidence but is unable to obtain it. The appointment of a
representative shortly before a hearing may be such an exception,
depending on the circumstances surrounding the late appointment. In
addition, we note that if a claimant informs an ALJ about evidence 5 or
more days before the hearing, there would be no need for the ALJ to
find that an exception applies, because the claimant notified us prior
to the deadline.

Representation

Comment: A few commenters argued that when taking a new case,
representatives often find that prior counsel was incompetent in
obtaining evidence, and this rule, as applied at both the hearing and
Appeals Council levels, unjustly harms claimants represented by such
individuals.
Response: We reiterate that we expect all appointed representatives
to make good faith efforts to assist claimants in obtaining and
submitting the required evidence before a hearing, as required under 20
CFR 404.1740(b)(2) and 416.1540(b)(2). Additionally, if a new
representative can show that a prior representative did not adequately
uphold his or her duty to the claimant, we expect that our adjudicators
would find that this would warrant an exception to the 5-day
requirement.

Other

Comment: Several commenters stated the new standard at the Appeals
Council level would force claimants to choose between filing a new
claim and appealing an ALJ's decision to the Appeals Council, which
could result in the loss of significant benefits. Another commenter
stated it would result in filing more new applications overall or the
reopening of prior applications so that a claimant could submit
previously excluded evidence.
Response: It bears reiterating that we expect the final rule will
help to ensure that evidentiary records are more complete at the time
of the scheduled hearing. However, our final rule contemplates that
some circumstances may warrant the introduction of new evidence at or
after the hearing, and includes an ``inform'' option and broad
exceptions to accommodate these circumstances. With the ``inform''
option and the broad exceptions to the 5-day requirement, we do not
expect to see a spike in new applications or reopenings.
Moreover, it is already our policy that if a claimant wants to file
a new disability application under the same title and for the same
benefit type as a disability claim pending at the Appeals Council
level, and the claimant does not have evidence of a new critical or
disabling condition, the claimant must choose to continue the appeal of
the prior claim or file a new application. Nothing in the proposed or
final rule substantively changes this policy.
Under our current rules in 20 CFR 404.970 and 416.1470, the Appeals
Council considers additional evidence only if it is new, material, and
related to the period on or before the date of the ALJ's decision. This
does not mean, however, that the Appeals Council grants a claimant's
request for review of an ALJ's decision whenever additional evidence
meets this criteria. In many cases, the Appeals Council adds evidence
that meets the criteria to the record, but denies the request for
review of the case. Under our current rules, the Appeals Council will
review a case in this situation only if it finds that the ALJ's action,
findings, or conclusion is contrary to the weight of the evidence
currently of record. This final rule provides more clarity to this
procedure. Under this final rule, the Appeals Council will grant review
of a case based on the receipt of additional evidence if the evidence
is new, material, and related to the period on or before the date of
the hearing decision and if there is a reasonable probability that the
additional evidence would change the outcome of the decision.
If a claimant submits evidence that the Appeals Council does not
consider, the Appeals Council will notify the claimant that if he or
she files a new application for disability insurance benefits within 6
months or a new application for Supplemental Security Income within 60
days of the Appeals Council notice, the date of the request for review
will constitute a protective filing for a new application.
Comment: One commenter expressed concerns about the proposed
language in 20 CFR 404.951(b) and 416.1451(b) because adding the phrase
``appropriate reference'' was insufficient to describe what evidence an
ALJ must include in the record.
Response: During the time that substantially the same rule was in
place in the Boston region, we did not experience any confusion as to
the meaning of the phrase ``appropriate reference.'' Further, this
language is consistent with our longstanding sub-regulatory policies
and practices nationwide, and adoption of this language does not change
our policies regarding what constitutes the official record.
Comment: Many commenters submitted a broad statement that there
have been ``serious problems'' and inconsistencies with implementation
of the 5-day requirement in the Boston region. The commenters generally
presented two main points: (1) There was variance in applying the 5-day
requirement between ALJs; and (2) ALJs who did apply the rule varied in
when

[[Page 90992]]

the 5-day requirement ended and in evaluating whether an exception to
the 5-day requirement applied.
Response: We acknowledge that in a report issued by the
Administrative Conference of the United States (ACUS) \4\ on December
13, 2013, ACUS noted several variances in applying similar rules in the
Boston region. However, in response to the ACUS report, we provided
additional training to adjudicators and staff regarding application of
our Part 405 rules. We also incorporated instructions for processing
cases originating in the Boston region into our training materials for
all staff, including addressing Part 405 issues in several of our
quarterly Videos-On-Demand series that focus on new or problematic
areas of adjudication. We updated our sub-regulatory guidance to
include references and instructions on how to process cases under Part
405. We will provide the training and instruction necessary to ensure
consistent application of our rules nationwide.
---------------------------------------------------------------------------

\4\ Administrative Conference of the United States, ``SSA
Disability Benefits Adjudication Process: Assessing the Impact of
the Region I Pilot Program,'' Final Report: December 23, 2013.
https://www.acus.gov/sites/default/files/documents/Assessing%20Impact%20of%20Region%20I%20Pilot%20Program%20Report_12_23_13_final.pdf.
---------------------------------------------------------------------------

Comment: One commenter asked that if we retain the 5-day
requirement, we amend the language to require that each party make
every reasonable effort to ensure the ALJ receives all the evidence.
The commenter noted that proposed 20 CFR 404.935(a) and 416.1435(a)
require ``every effort,'' which the commenter believed is an impossible
standard to meet.
Response: While our final rule requires a claimant to ``make every
effort to ensure that the administrative law judge receives all of the
evidence,'' we do not believe the rule creates an ``impossible
standard'' because it also includes appropriate exceptions to
accommodate circumstances when, despite good faith efforts, the
claimant cannot satisfy the 5-day requirement.
Comment: Some commenters stated that 20 CFR 404.944(a)(1) and
416.1444(a)(1) conflict with 20 CFR 404.1512 and 416.912 because one
regulation requires an ALJ to ``accept[] as evidence any documents that
are material to the issues'' while the other regulation requires a
claimant to submit evidence that ``relates to whether or not you are
blind or disabled.''
Response: A claimant continues to have a duty to submit all
evidence that relates to whether or not he or she is blind or disabled,
subject to our other requirements, at the hearing and Appeals Council
levels of the administrative process. Whereas 20 CFR 404.1512 and
416.912 explain a claimant's responsibility, 20 CFR 404.944(a)(1) and
416.1444(a)(1) address actions an administrative law judge will take.
We expect claimants to submit evidence that relates to whether they are
blind or disabled, but our administrative law judges are responsible
for making the legal judgment determination whether evidence is
``material to the issues.''

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 final rule meets the criteria for a significant
regulatory action under Executive Order 12866, as supplemented by
Executive Order 13563. Therefore, OMB reviewed it.

Regulatory Flexibility Act

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

Paperwork Reduction Act

These final rules contain reporting requirements in regulation
sections Sec. Sec. 404.968, 404.976, 416.1468, and 416.1476 that
require OMB clearance under the Paperwork Reduction Act of 1995 (PRA).
SSA will submit separate information collection requests to OMB in the
future for these regulations sections. We will not collect the
information referenced in these burden sections until we receive OMB
approval.

(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; and 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 405

Administrative practice and procedure; Blind; Disability benefits;
Old-Age, Survivors, and Disability Insurance; Public assistance
programs; Reporting and recordkeeping requirements; Social Security;
Supplemental Security Income (SSI).

20 CFR Part 416

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

Carolyn W. Colvin,
Acting Commissioner of Social Security.

For the reasons set out in the preamble, we amend 20 CFR chapter
III, parts 404, 405, and 416 as set forth below:

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

Subpart J--[Amended]

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

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

0
2. In Sec. 404.900, revise the second sentence of paragraph (b) to
read as follows:

Sec. 404.900 Introduction.

* * * * *
(b) * * * Subject to certain timeframes at the hearing level (see
Sec. 404.935) and the limitations on Appeals Council consideration of
additional evidence (see Sec. 404.970), we will consider at each step
of the review process any information you present as well as all the
information in our records.* * *

0
3. Revise the fifth and eighth sentences in Sec. 404.929 to read as
follows:

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

* * * You may submit new evidence (subject to the provisions of
Sec. 404.935), examine the evidence used in making the determination
or decision under review, and present and question witnesses. * * * If
you waive your right to appear at the hearing, in person, by video
teleconferencing, or by telephone, the administrative law judge will
make a decision based on the preponderance of the evidence that is in
the file and, subject to the provisions of Sec. 404.935,

[[Page 90993]]

any new evidence that may have been submitted for consideration.* * *

0
4. Revise Sec. 404.935 to read as follows:

Sec. 404.935 Submitting written evidence to an administrative law
judge.

(a) When you submit your request for hearing, you should also
submit information or evidence as required by Sec. 404.1512 or any
summary of the evidence to the administrative law judge. Each party
must make every effort to ensure that the administrative law judge
receives all of the evidence and must inform us about or submit any
written evidence, as required in Sec. 404.1512, no later than 5
business days before the date of the scheduled hearing. If you do not
comply with this requirement, the administrative law judge may decline
to consider or obtain the evidence, unless the circumstances described
in paragraph (b) of this section apply.
(b) If you have evidence required under Sec. 404.1512 but you have
missed the deadline described in paragraph (a) of this section, the
administrative law judge will accept the evidence if he or she has not
yet issued a decision and you did not inform us about or submit the
evidence before the deadline because:
(1) Our action misled you;
(2) You had a physical, mental, educational, or linguistic
limitation(s) that prevented you from informing us about or submitting
the evidence earlier; or
(3) Some other unusual, unexpected, or unavoidable circumstance
beyond your control prevented you from informing us about or submitting
the evidence earlier. Examples include, but are not limited to:
(i) You were seriously ill, and your illness prevented you from
contacting us in person, in writing, or through a friend, relative, or
other person;
(ii) There was a death or serious illness in your immediate family;
(iii) Important records were destroyed or damaged by fire or other
accidental cause; or
(iv) You actively and diligently sought evidence from a source and
the evidence was not received or was received less than 5 business days
prior to the hearing.

0
5. In Sec. 404.938, revise paragraphs (a) and (b) to read as follows:

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

(a) Issuing the notice. After we set the time and place of the
hearing, we will mail notice of the hearing to you at your last known
address, or give the notice to you by personal service, unless you have
indicated in writing that you do not wish to receive this notice. We
will mail or serve the notice at least 75 days before the date of the
hearing.
(b) Notice information. The notice of hearing will tell you:
(1) The specific issues to be decided in your case;
(2) That you may designate a person to represent you during the
proceedings;
(3) How to request that we change the time or place of your
hearing;
(4) That your hearing may be dismissed if neither you nor the
person you designate to act as your representative appears at your
scheduled hearing without good reason under Sec. 404.957;
(5) Whether your appearance or that of any other party or witness
is scheduled to be made in person, by video teleconferencing, or by
telephone. If we have scheduled you to appear at the hearing by video
teleconferencing, the notice of hearing will tell you that the
scheduled place for the hearing is a video teleconferencing site and
explain what it means to appear at your hearing by video
teleconferencing;
(6) That you must make every effort to inform us about or submit
all written evidence that is not already in the record no later than 5
business days before the date of the scheduled hearing, unless you show
that your circumstances meet the conditions described in Sec.
404.935(b); and
(7) Any other information about the scheduling and conduct of your
hearing.
* * * * *

0
6. Revise Sec. 404.939 to read as follows:

Sec. 404.939 Objections to the issues.

If you object to the issues to be decided at the hearing, you must
notify the administrative law judge in writing at the earliest possible
opportunity, but no later than 5 business days before the date set for
the hearing, unless you show that your circumstances meet the
conditions described in Sec. 404.935(b). You must state the reason(s)
for your objection(s). The administrative law judge will make a
decision on your objection(s) either at the hearing or in writing
before the hearing.

0
7. Revise Sec. 404.944 to read as follows:

Sec. 404.944 Administrative law judge hearing procedures--general.

A hearing is open to the parties and to other persons the
administrative law judge considers necessary and proper. At the
hearing, the administrative law judge looks fully into the issues,
questions you and the other witnesses, and, subject to the provisions
of Sec. 404.935: Accepts as evidence any documents that are material
to the issues; may stop the hearing temporarily and continue it at a
later date if he or she finds that there is material evidence missing
at the hearing; and may reopen the hearing at any time before he or she
mails a notice of the decision in order to receive new and material
evidence. The administrative law judge may decide when the evidence
will be presented and when the issues will be discussed.

0
8. Revise Sec. 404.949 to read as follows:

Sec. 404.949 Presenting written statements and oral arguments.

You or a person you designate to act as your representative may
appear before the administrative law judge to state your case, present
a written summary of your case, or enter written statements about the
facts and law material to your case in the record. If presenting
written statements prior to hearing, you must provide a copy of your
written statements for each party no later than 5 business days before
the date set for the hearing, unless you show that your circumstances
meet the conditions described in Sec. 404.935(b).

0
9. In Sec. 404.950, revise paragraphs (c) and (d) to read as follows:

Sec. 404.950 Presenting evidence at a hearing before an
administrative law judge.

* * * * *
(c) Admissible evidence. Subject to the provisions of Sec.
404.935, the administrative law judge may receive any evidence at the
hearing that he or she believes is material to the issues, even though
the evidence would not be admissible in court under the rules of
evidence used by the court.
(d) Subpoenas. (1) When it is reasonably necessary for the full
presentation of a case, an administrative law judge or a member of the
Appeals Council may, on his or her own initiative or at the request of
a party, issue subpoenas for the appearance and testimony of witnesses
and for the production of books, records, correspondence, papers, or
other documents that are material to an issue at the hearing.
(2) Parties to a hearing who wish to subpoena documents or
witnesses must file a written request for the issuance of a subpoena
with the administrative law judge or at one of our offices at least 10
business days before the hearing date, unless you show that your
circumstances meet the conditions described in Sec. 404.935(b). The
written request must give the names of the witnesses or documents to be
produced; describe the address or location of the witnesses or
documents with sufficient detail to find them; state the important

[[Page 90994]]

facts that the witness or document is expected to prove; and indicate
why these facts could not be proven without issuing a subpoena.
(3) We will pay the cost of issuing the subpoena.
(4) We will pay subpoenaed witnesses the same fees and mileage they
would receive if they had been subpoenaed by a Federal district court.
* * * * *

0
10. Revise Sec. 404.951 to read as follows:

Sec. 404.951 Official record.

(a) Hearing recording. All hearings will be recorded. The hearing
recording will be prepared as a typed copy of the proceedings if--
(1) The case is sent to the Appeals Council without a decision or
with a recommended decision by the administrative law judge;
(2) You seek judicial review of your case by filing an action in a
Federal district court within the stated time period, unless we request
the court to remand the case; or
(3) An administrative law judge or the Appeals Council asks for a
written record of the proceedings.
(b) Contents of the official record. All evidence upon which the
administrative law judge relies for the decision must be contained in
the record, either directly or by appropriate reference. The official
record will include the applications, written statements, certificates,
reports, affidavits, medical records, and other documents that were
used in making the decision under review and any additional evidence or
written statements that the administrative law judge admits into the
record under Sec. Sec. 404.929 and 404.935. All exhibits introduced as
evidence must be marked for identification and incorporated into the
record. The official record of your claim will contain all of the
marked exhibits and a verbatim recording of all testimony offered at
the hearing. It also will include any prior initial determinations or
decisions on your claim.

0
11. In Sec. 404.968, revise the second sentence of paragraph (a)
introductory text to read as follows:

Sec. 404.968 How to request Appeals Council review.

(a) * * * You should submit any evidence you wish to have
considered by the Appeals Council with your request for review, and the
Appeals Council will consider the evidence in accordance with Sec.
404.970. * * *
* * * * *

0
12. Revise Sec. 404.970 to read as follows:

Sec. 404.970 Cases the Appeals Council will review.

(a) The Appeals Council will review a case if--
(1) There appears to be an abuse of discretion by the
administrative law judge;
(2) There is an error of law;
(3) The action, findings or conclusions of the administrative law
judge are not supported by substantial evidence;
(4) There is a broad policy or procedural issue that may affect the
general public interest; or
(5) Subject to paragraph (b) of this section, the Appeals Council
receives additional evidence that is new, material, and relates to the
period on or before the date of the hearing decision, and there is a
reasonable probability that the additional evidence would change the
outcome of the decision.
(b) The Appeals Council will only consider additional evidence
under paragraph (a)(5) of this section if you show good cause for not
informing us about or submitting the evidence as described in Sec.
404.935 because:
(1) Our action misled you;
(2) You had a physical, mental, educational, or linguistic
limitation(s) that prevented you from informing us about or submitting
the evidence earlier; or
(3) Some other unusual, unexpected, or unavoidable circumstance
beyond your control prevented you from informing us about or submitting
the evidence earlier. Examples include, but are not limited to:
(i) You were seriously ill, and your illness prevented you from
contacting us in person, in writing, or through a friend, relative, or
other person;
(ii) There was a death or serious illness in your immediate family;
(iii) Important records were destroyed or damaged by fire or other
accidental cause;
(iv) You actively and diligently sought evidence from a source and
the evidence was not received or was received less than 5 business days
prior to the hearing; or
(v) You received a hearing level decision on the record and the
Appeals Council reviewed your decision.
(c) If you submit additional evidence that does not relate to the
period on or before the date of the administrative law judge hearing
decision as required in paragraph (a)(5) of this section, or the
Appeals Council does not find you had good cause for missing the
deadline to submit the evidence in Sec. [thinsp]404.935, the Appeals
Council will send you a notice that explains why it did not accept the
additional evidence and advises you of your right to file a new
application. The notice will also advise you that if you file a new
application within 6 months after the date of the Appeals Council's
notice, your request for review will constitute a written statement
indicating an intent to claim benefits under Sec. [thinsp]404.630. If
you file a new application within 6 months of the Appeals Council's
notice, we will use the date you requested Appeals Council review as
the filing date for your new application.

0
13. Revise Sec. 404.976 to read as follows:

Sec. 404.976 Procedures before the Appeals Council on review.

(a) Limitation of issues. The Appeals Council may limit the issues
it considers if it notifies you and the other parties of the issues it
will review.
(b) Oral argument. You may request to appear before the Appeals
Council to present oral argument. The Appeals Council will grant your
request if it decides that your case raises an important question of
law or policy or that oral argument would help to reach a proper
decision. If your request to appear is granted, the Appeals Council
will tell you the time and place of the oral argument at least 10
business days before the scheduled date. The Appeals Council will
determine whether your appearance, or the appearance of any other
person relevant to the proceeding, will be in person, by video
teleconferencing, or by telephone.

Sec. 404.979 [Amended]

0
14. Revise the first sentence of Sec. 404.979 to read as follows:
After it has reviewed all the evidence in the administrative law
judge hearing record and any additional evidence received, subject to
the limitations on Appeals Council consideration of additional evidence
in Sec. 404.970, the Appeals Council will make a decision or remand
the case to an administrative law judge. * * *

PART 405--[REMOVED AND RESERVED]

0
15. Under the authority of sections 205(a), 702(a)(5), and 1631(d)(1)
of the Social Security Act, part 405 is removed and reserved.

[[Page 90995]]

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

Subpart N--Determinations, Administrative Review Process, and
Reopening of Determinations and Decisions

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

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

0
17. In Sec. 416.1400, revise the second sentence of paragraph (b) to
read as follows:

Sec. 416.1400 Introduction.

* * * * *
(b) * * * Subject to certain timeframes at the hearing level (see
Sec. 416.1435) and the limitations on Appeals Council consideration of
additional evidence (see Sec. 416.1470), we will consider at each step
of the review process any information you present as well as all the
information in our records.* * *

0
18. Revise the fifth and eighth sentences of Sec. 416.1429 to read as
follows:

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

* * * You may submit new evidence (subject to the provisions of
Sec. 416.1435), examine the evidence used in making the determination
or decision under review, and present and question witnesses. * * * If
you waive your right to appear at the hearing, in person, by video
teleconferencing, or by telephone, the administrative law judge will
make a decision based on the preponderance of the evidence that is in
the file and, subject to the provisions of Sec. 416.1435, any new
evidence that may have been submitted for consideration.* * *

0
19. Revise Sec. 416.1435 to read as follows:

Sec. 416.1435 Submitting written evidence to an administrative law
judge.

(a) When you submit your request for hearing, you should also
submit information or evidence as required by Sec. 416.912 or any
summary of the evidence to the administrative law judge. Each party
must make every effort to ensure that the administrative law judge
receives all of the evidence and must inform us about or submit any
written evidence, as required in Sec. 416.912, no later than 5
business days before the date of the scheduled hearing. If you do not
comply with this requirement, the administrative law judge may decline
to consider or obtain the evidence unless the circumstances described
in paragraph (b) of this section apply.
(b) If you have evidence required under Sec. 416.912 but you have
missed the deadline described in paragraph (a) of this section, the
administrative law judge will accept the evidence if he or she has not
yet issued a decision and you did not inform us about or submit the
evidence before the deadline because:
(1) Our action misled you;
(2) You had a physical, mental, educational, or linguistic
limitation(s) that prevented you from informing us about or submitting
the evidence earlier; or
(3) Some other unusual, unexpected, or unavoidable circumstance
beyond your control prevented you from informing us about or submitting
the evidence earlier. Examples include, but are not limited to:
(i) You were seriously ill, and your illness prevented you from
contacting us in person, in writing, or through a friend, relative, or
other person;
(ii) There was a death or serious illness in your immediate family;
(iii) Important records were destroyed or damaged by fire or other
accidental cause; or
(iv) You actively and diligently sought evidence from a source and
the evidence was not received or was received less than 5 business days
prior to the hearing.
(c) Claims Not Based on an Application For Benefits.
Notwithstanding the requirements in paragraphs (a)-(b) of this section,
for claims that are not based on an application for benefits, the
evidentiary requirement to inform us about or submit evidence no later
than 5 business days before the date of the scheduled hearing will not
apply if our other regulations allow you to submit evidence after the
date of an administrative law judge decision.

0
20. In Sec. 416.1438, revise paragraphs (a) and (b) to read as
follows:

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

(a) Issuing the notice. After we set the time and place of the
hearing, we will mail notice of the hearing to you at your last known
address, or give the notice to you by personal service, unless you have
indicated in writing that you do not wish to receive this notice. We
will mail or serve the notice at least 75 days before the date of the
hearing.
(b) Notice information. The notice of hearing will tell you:
(1) The specific issues to be decided in your case;
(2) That you may designate a person to represent you during the
proceedings;
(3) How to request that we change the time or place of your
hearing;
(4) That your hearing may be dismissed if neither you nor the
person you designate to act as your representative appears at your
scheduled hearing without good reason under Sec. 416.1457;
(5) Whether your appearance or that of any other party or witness
is scheduled to be made in person, by video teleconferencing, or by
telephone. If we have scheduled you to appear at the hearing by video
teleconferencing, the notice of hearing will tell you that the
scheduled place for the hearing is a video teleconferencing site and
explain what it means to appear at your hearing by video
teleconferencing;
(6) That you must make every effort to inform us about or submit
all written evidence that is not already in the record no later than 5
business days before the date of the scheduled hearing, unless you show
that your circumstances meet the conditions described in Sec.
416.1435(b); and
(7) Any other information about the scheduling and conduct of your
hearing.
* * * * *

0
21. Revise Sec. 416.1439 to read as follows:

Sec. 416.1439 Objections to the issues.

If you object to the issues to be decided at the hearing, you must
notify the administrative law judge in writing at the earliest possible
opportunity, but no later than 5 business days before the date set for
the hearing, unless you show that your circumstances meet the
conditions described in Sec. 416.1435(b). You must state the reason(s)
for your objection(s). The administrative law judge will make a
decision on your objection(s) either at the hearing or in writing
before the hearing.

0
22. Revise Sec. 416.1444 to read as follows:

Sec. 416.1444 Administrative law judge hearing procedures--general.

A hearing is open to the parties and to other persons the
administrative law judge considers necessary and proper. At the
hearing, the administrative law judge looks fully into the issues,
questions you and the other witnesses, and, subject to the provisions
of Sec. [thinsp]416.1435: Accepts as evidence any documents that are
material to the issues; may stop the hearing temporarily and continue
it at a later date if he or she finds that there is material evidence
missing at the hearing; and may reopen the hearing at any time before
he or she mails a notice of the decision in order

[[Page 90996]]

to receive new and material evidence. The administrative law judge may
decide when the evidence will be presented and when the issues will be
discussed.

0
23. Revise Sec. 416.1449 to read as follows:

Sec. 416.1449 Presenting written statements and oral arguments.

0
24. In Sec. 416.1450, revise paragraphs (c) and (d) to read as
follows:

Sec. 416.1450 Presenting evidence at a hearing before an
administrative law judge.

* * * * *
(c) Admissible evidence. Subject to the provisions of Sec.
416.1435, the administrative law judge may receive any evidence at the
hearing that he or she believes is material to the issues, even though
the evidence would not be admissible in court under the rules of
evidence used by the court.
(d) Subpoenas. (1) When it is reasonably necessary for the full
presentation of a case, an administrative law judge or a member of the
Appeals Council may, on his or her own initiative or at the request of
a party, issue subpoenas for the appearance and testimony of witnesses
and for the production of books, records, correspondence, papers, or
other documents that are material to an issue at the hearing.
(2) Parties to a hearing who wish to subpoena documents or
witnesses must file a written request for the issuance of a subpoena
with the administrative law judge or at one of our offices at least 10
business days before the hearing date, unless you show that your
circumstances meet the conditions described in Sec. 416.1435(b). The
written request must give the names of the witnesses or documents to be
produced; describe the address or location of the witnesses or
documents with sufficient detail to find them; state the important
facts that the witness or document is expected to prove; and indicate
why these facts could not be proven without issuing a subpoena.
(3) We will pay the cost of issuing the subpoena.
(4) We will pay subpoenaed witnesses the same fees and mileage they
would receive if they had been subpoenaed by a Federal district court.
* * * * *

0
25. Revise Sec. 416.1451 to read as follows:

Sec. 416.1451 Official record.

(a) Hearing recording. All hearings will be recorded. The hearing
recording will be prepared as a typed copy of the proceedings if--
(1) The case is sent to the Appeals Council without a decision or
with a recommended decision by the administrative law judge;
(2) You seek judicial review of your case by filing an action in a
Federal district court within the stated time period, unless we request
the court to remand the case; or
(3) An administrative law judge or the Appeals Council asks for a
written record of the proceedings.
(b) Contents of the official record. All evidence upon which the
administrative law judge relies for the decision must be contained in
the record, either directly or by appropriate reference. The official
record will include the applications, written statements, certificates,
reports, affidavits, medical records, and other documents that were
used in making the decision under review and any additional evidence or
written statements that the administrative law judge admits into the
record under Sec. Sec. 416.1429 and 416.1435. All exhibits introduced
as evidence must be marked for identification and incorporated into the
record. The official record of your claim will contain all of the
marked exhibits and a verbatim recording of all testimony offered at
the hearing. It also will include any prior initial determinations or
decisions on your claim.

0
26. In Sec. 416.1468, revise the second sentence of paragraph (a)
introductory text to read as follows:

Sec. 416.1468 How to request Appeals Council review.

0
27. Revise Sec. 416.1470 to read as follows:

Sec. 416.1470 Cases the Appeals Council will review.

(a) The Appeals Council will review a case if--
(1) There appears to be an abuse of discretion by the
administrative law judge;
(2) There is an error of law;
(3) The action, findings or conclusions of the administrative law
judge are not supported by substantial evidence;
(4) There is a broad policy or procedural issue that may affect the
general public interest; or
(5) Subject to paragraph (b) of this section, the Appeals Council
receives additional evidence that is new, material, and relates to the
period on or before the date of the hearing decision, and there is a
reasonable probability that the additional evidence would change the
outcome of the decision.
(b) In reviewing decisions other than those based on an application
for benefits, the Appeals Council will consider the evidence in the
administrative law judge hearing record and any additional evidence it
believes is material to an issue being considered. However, in
reviewing decisions based on an application for benefits, the Appeals
Council will only consider additional evidence under paragraph (a)(5)
of this section if you show good cause for not informing us about or
submitting the evidence as described in Sec. 416.1435 because:
(1) Our action misled you;
(2) You had a physical, mental, educational, or linguistic
limitation(s) that prevented you from informing us about or submitting
the evidence earlier; or
(3) Some other unusual, unexpected, or unavoidable circumstance
beyond your control prevented you from informing us about or submitting
the evidence earlier. Examples include, but are not limited to:
(i) You were seriously ill, and your illness prevented you from
contacting us in person, in writing, or through a friend, relative, or
other person;
(ii) There was a death or serious illness in your immediate family;
(iii) Important records were destroyed or damaged by fire or other
accidental cause;
(iv) You actively and diligently sought evidence from a source and
the evidence was not received or was received less than 5 business days
prior to the hearing; or
(v) You received a hearing level decision on the record and the
Appeals Council reviewed your decision.
(c) If you submit additional evidence that does not relate to the
period on or before the date of the administrative law judge hearing
decision as required in paragraph (a)(5) of this section, or the
Appeals Council does not find you had

[[Page 90997]]

good cause for missing the deadline to submit the evidence in Sec.
[thinsp]416.1435, the Appeals Council will send you a notice that
explains why it did not accept the additional evidence and advises you
of your right to file a new application. The notice will also advise
you that if you file a new application within 60 days after the date of
the Appeals Council's notice, your request for review will constitute a
written statement indicating an intent to claim benefits under Sec.
[thinsp]416.340. If you file a new application within 60 days of the
Appeals Council's notice, we will use the date you requested Appeals
Council review as the filing date for your new application.

0
28. Revise Sec. 416.1476 to read as follows:

Sec. 416.1476 Procedures before the Appeals Council on review.

Sec. 416.1479 [Amended]

0
29. Revise the first sentence of Sec. 416.1479 to read as follows:
After it has reviewed all the evidence in the administrative law
judge hearing record and any additional evidence received, subject to
the limitations on Appeals Council consideration of additional evidence
in Sec. 416.1470, the Appeals Council will make a decision or remand
the case to an administrative law judge. * * *

[FR Doc. 2016-30103 Filed 12-15-16; 8:45 am]
BILLING CODE 4191-02-P

90988 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations

20 CFR 404.938 and 416.1438 from at comments and, where appropriate, rules we have been applying in the
least 60 days to at least 75 days; made changes in response to these Boston region since 2006.
• In 20 CFR 404.935(b)(3)(iv) and comments. Some commenters requested that we
416.1435(b)(3)(iv), we removed the Below, we summarize and respond to extend the advance notice period to 90
phrase ‘‘through no fault of your own’’ the comments submitted on the or 120 days instead of the proposed 60-
to reduce the evidentiary burden on proposed rule, and respond to the days advance notice. We have decided
claimants who are unable to provide significant issues relevant to this not to extend the advance notice period
evidence; rulemaking. We do not respond to to 90 or 120 days, because providing a
• We clarified that the circumstances comments that are outside the scope of hearing date this far in advance would
set forth in 20 CFR 404.935(b)(3)(i) to this rulemaking proceeding. increase the likelihood that an
(b)(3)(iv) and 416.1435(b)(3)(i) to adjudicator’s schedule will change by
Hearing Notice Requirement
(b)(3)(iv) are merely examples and do the scheduled hearing date. Moreover,
not constitute an exhaustive list; Comment: Several commenters in contrast to the 75-day period, we
• We added the same exceptions to supported our proposal to provide more have no current model to support the
the 5-day requirement that we proposed advance notice of a hearing, but asked use of a longer time period.
for the submission of evidence in 20 that we adopt the 75-day advance notice
requirement currently in place in the Exceptions to the 5-Day Requirement
CFR 404.935 and 416.1435 to the
deadlines related to objecting to the Boston region, rather than the 60-day Comment: Several commenters asked
issues (20 CFR 404.939 and 416.1439), advance notice we proposed in the that we retain the exception in 20 CFR
presenting written statements (20 CFR NPRM. Several of the commenters 404.935(b)(3)(iv) in the final rule
404.949 and 416.1449), and submitting stated that earlier notice would allow because it recognized the difficulties of
subpoenas (20 CFR 404.950(d)(2) and claimants to: (1) Obtain and submit the obtaining medical evidence, while
416.1450(d)(2)); information and evidence, especially another commenter suggested we
• We added language to 20 CFR when a medical provider is eliminate this exception because it was
404.949 and 416.1449 to clarify that the uncooperative; (2) make arrangements vague and contrary to the intent and
5-day requirement applies only to pre- for transportation to the hearing; (3) take purpose of the proposed rule. Several
hearing written statements, not to post- into account time frames under the commenters expressed concerns about
hearing written statements; regulations implementing the Health our exceptions to the 5-day requirement
• We added an example of an Insurance Portability and because they were too narrowly defined,
exception for submitting additional Accountability Act (HIPAA) that too subjective, and would increase our
evidence to the Appeals Council in 20 provide an entity up to 60 days before workloads. Other commenters suggested
CFR 404.970(b)(3)(v) and it must produce records (45 CFR that we add additional exceptions, such
416.1470(b)(3)(v); 164.524(b)); and (4) avoid a as when the claimant is homeless or
• We reorganized paragraphs (a)(5) postponement of hearing due to non- lacks representation. One commenter
and (b) of 20 CFR 404.970 and 416.1470; receipt of medical records. Several other requested that the Appeals Council also
• We removed proposed subsection commenters said that even a 75-day find good cause for submitting evidence
20 CFR 404.970(d) and 416.1470(d); notice requirement is insufficient, and after the 5-day requirement if the
• We added clarifying cross- that we should provide notice 90 to 120 claimant was unrepresented or
references to 20 CFR 404.900 and days in advance of a hearing. homeless at the hearing level.
416.1400 and 20 CFR 404.929 and Response: We recognize that Response: We provide examples of
416.1429 to place the 5-day requirement claimants and representatives may exceptions to the 5-day requirement in
in 20 CFR 404.935 and 416.1435 in sometimes face challenges in acquiring final 20 CFR 404.935(b)(3) and
context; and, medical records. In response to multiple 416.1435(b)(3) and have clarified that
• We broadened the existing cross- advocate comments indicating a we did not intend for them to be all-
reference in 20 CFR 404.968 and preference for 75 days’ advance notice inclusive or to exclude other
416.1468 and 20 CFR 404.979 and of a hearing instead of 60 days, we are extenuating circumstances that may
416.1479 to reference the entire section revising the final rule to provide 75 result in a claimant being unable to
of 20 CFR 404.970 and 416.1470, and days’ advance notice. Since we already meet the 5-day requirement. To clarify
we removed the cross reference to 20 have approximately a decade of this point, we changed the regulatory
CFR 404.976 and 416.1476 in 20 CFR experience in using the 75-day advance text to state that ‘‘[e]xamples include,
404.979 and 416.1479. notice period in the Boston Region, we but are not limited to’’ the outlined
believe its expansion nationwide is exceptions. Because circumstances vary,
Public Comments justified. we determine whether a claimant
We initially provided a 30-day We proposed a 60-day period in our qualifies for an exception on a case-by-
comment period that would have ended NPRM because we believed it would case basis.
on August 11, 2016. We subsequently promote the efficiency of our hearing We do not anticipate that evaluating
extended the comment period for an process (81 FR at 45081). However, we requests for exceptions to the 5-day
additional 15 days, until August 26, recognize the concerns that that requirement will increase our
2016 (81 FR 51412). We received 154 commenters raised, including stated workloads. We recognize that
comments on our proposed rule from concerns about the adequacy of a 60-day compliance with the 5-day requirement
the public, interested advocacy groups, advance notice requirement in light of will not be possible in all situations;
asabaliauskas on DSK3SPTVN1PROD with RULES

and several members of Congress. We the timeframe an entity has to provide however, based on our experience in the
did not consider six comments because evidence to an individual under the Boston region, we expect that providing
they either came from employees who HIPAA regulations. In order to at least 75 days’ advance notice of a
commented in their official employment minimize the burden on claimants, we hearing will significantly increase the
capacity, which is a violation of our have decided to adopt the commenters’ number of times evidence is obtained
policy, or they were outside the scope suggestion that we continue to provide and submitted at least 5 business days
of this rulemaking. We published and at least 75-day advance notice of a before the hearing. We also note that in
carefully considered the remaining 148 hearing, as we have done under the our experience the need to evaluate

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Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations 90993

any new evidence that may have been have indicated in writing that you do issues; may stop the hearing temporarily
submitted for consideration.* * * not wish to receive this notice. We will and continue it at a later date if he or
■ 4. Revise § 404.935 to read as follows: mail or serve the notice at least 75 days she finds that there is material evidence
before the date of the hearing. missing at the hearing; and may reopen
§ 404.935 Submitting written evidence to (b) Notice information. The notice of the hearing at any time before he or she
an administrative law judge. hearing will tell you: mails a notice of the decision in order
(a) When you submit your request for (1) The specific issues to be decided to receive new and material evidence.
hearing, you should also submit in your case; The administrative law judge may
information or evidence as required by (2) That you may designate a person decide when the evidence will be
§ 404.1512 or any summary of the to represent you during the proceedings; presented and when the issues will be
evidence to the administrative law (3) How to request that we change the discussed.
judge. Each party must make every time or place of your hearing; ■ 8. Revise § 404.949 to read as follows:
effort to ensure that the administrative (4) That your hearing may be
law judge receives all of the evidence dismissed if neither you nor the person § 404.949 Presenting written statements
and must inform us about or submit any you designate to act as your and oral arguments.
written evidence, as required in representative appears at your You or a person you designate to act
§ 404.1512, no later than 5 business scheduled hearing without good reason as your representative may appear
days before the date of the scheduled under § 404.957; before the administrative law judge to
hearing. If you do not comply with this (5) Whether your appearance or that state your case, present a written
requirement, the administrative law of any other party or witness is summary of your case, or enter written
judge may decline to consider or obtain scheduled to be made in person, by statements about the facts and law
the evidence, unless the circumstances video teleconferencing, or by telephone. material to your case in the record. If
described in paragraph (b) of this If we have scheduled you to appear at presenting written statements prior to
section apply. the hearing by video teleconferencing, hearing, you must provide a copy of
(b) If you have evidence required the notice of hearing will tell you that your written statements for each party
under § 404.1512 but you have missed the scheduled place for the hearing is a no later than 5 business days before the
the deadline described in paragraph (a) video teleconferencing site and explain date set for the hearing, unless you
of this section, the administrative law what it means to appear at your hearing show that your circumstances meet the
judge will accept the evidence if he or by video teleconferencing; conditions described in § 404.935(b).
she has not yet issued a decision and (6) That you must make every effort ■ 9. In § 404.950, revise paragraphs (c)
you did not inform us about or submit to inform us about or submit all written and (d) to read as follows:
the evidence before the deadline evidence that is not already in the
because: record no later than 5 business days § 404.950 Presenting evidence at a hearing
before the date of the scheduled hearing, before an administrative law judge.
(1) Our action misled you;
(2) You had a physical, mental, unless you show that your * * * * *
educational, or linguistic limitation(s) circumstances meet the conditions (c) Admissible evidence. Subject to
that prevented you from informing us described in § 404.935(b); and the provisions of § 404.935, the
about or submitting the evidence earlier; (7) Any other information about the administrative law judge may receive
or scheduling and conduct of your hearing. any evidence at the hearing that he or
(3) Some other unusual, unexpected, * * * * * she believes is material to the issues,
or unavoidable circumstance beyond ■ 6. Revise § 404.939 to read as follows:
even though the evidence would not be
your control prevented you from admissible in court under the rules of
informing us about or submitting the § 404.939 Objections to the issues. evidence used by the court.
evidence earlier. Examples include, but If you object to the issues to be (d) Subpoenas. (1) When it is
are not limited to: decided at the hearing, you must notify reasonably necessary for the full
(i) You were seriously ill, and your the administrative law judge in writing presentation of a case, an administrative
illness prevented you from contacting at the earliest possible opportunity, but law judge or a member of the Appeals
us in person, in writing, or through a no later than 5 business days before the Council may, on his or her own
friend, relative, or other person; date set for the hearing, unless you initiative or at the request of a party,
(ii) There was a death or serious show that your circumstances meet the issue subpoenas for the appearance and
illness in your immediate family; conditions described in § 404.935(b). testimony of witnesses and for the
(iii) Important records were destroyed You must state the reason(s) for your production of books, records,
or damaged by fire or other accidental objection(s). The administrative law correspondence, papers, or other
cause; or judge will make a decision on your documents that are material to an issue
(iv) You actively and diligently sought objection(s) either at the hearing or in at the hearing.
evidence from a source and the writing before the hearing. (2) Parties to a hearing who wish to
evidence was not received or was ■ 7. Revise § 404.944 to read as follows:
subpoena documents or witnesses must
received less than 5 business days prior file a written request for the issuance of
to the hearing. § 404.944 Administrative law judge hearing a subpoena with the administrative law
procedures—general. judge or at one of our offices at least 10
■ 5. In § 404.938, revise paragraphs (a)
and (b) to read as follows: A hearing is open to the parties and business days before the hearing date,
asabaliauskas on DSK3SPTVN1PROD with RULES

to other persons the administrative law unless you show that your
§ 404.938 Notice of a hearing before an judge considers necessary and proper. circumstances meet the conditions
administrative law judge. At the hearing, the administrative law described in § 404.935(b). The written
(a) Issuing the notice. After we set the judge looks fully into the issues, request must give the names of the
time and place of the hearing, we will questions you and the other witnesses, witnesses or documents to be produced;
mail notice of the hearing to you at your and, subject to the provisions of describe the address or location of the
last known address, or give the notice to § 404.935: Accepts as evidence any witnesses or documents with sufficient
you by personal service, unless you documents that are material to the detail to find them; state the important

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90996 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations

to receive new and material evidence. (3) We will pay the cost of issuing the (1) There appears to be an abuse of
The administrative law judge may subpoena. discretion by the administrative law
decide when the evidence will be (4) We will pay subpoenaed witnesses judge;
presented and when the issues will be the same fees and mileage they would (2) There is an error of law;
discussed. receive if they had been subpoenaed by (3) The action, findings or
■ 23. Revise § 416.1449 to read as a Federal district court. conclusions of the administrative law
follows: * * * * * judge are not supported by substantial
■ 25. Revise § 416.1451 to read as evidence;
§ 416.1449 Presenting written statements
follows: (4) There is a broad policy or
and oral arguments. procedural issue that may affect the
You or a person you designate to act § 416.1451 Official record. general public interest; or
as your representative may appear (a) Hearing recording. All hearings (5) Subject to paragraph (b) of this
before the administrative law judge to will be recorded. The hearing recording section, the Appeals Council receives
state your case, present a written will be prepared as a typed copy of the additional evidence that is new,
summary of your case, or enter written proceedings if— material, and relates to the period on or
statements about the facts and law (1) The case is sent to the Appeals before the date of the hearing decision,
material to your case in the record. If Council without a decision or with a and there is a reasonable probability
presenting written statements prior to recommended decision by the that the additional evidence would
hearing, you must provide a copy of administrative law judge; change the outcome of the decision.
your written statements for each party (2) You seek judicial review of your (b) In reviewing decisions other than
no later than 5 business days before the case by filing an action in a Federal those based on an application for
date set for the hearing, unless you district court within the stated time benefits, the Appeals Council will
show that your circumstances meet the period, unless we request the court to consider the evidence in the
conditions described in § 416.1435(b). remand the case; or administrative law judge hearing record
■ 24. In § 416.1450, revise paragraphs (3) An administrative law judge or the and any additional evidence it believes
(c) and (d) to read as follows: Appeals Council asks for a written is material to an issue being considered.
record of the proceedings. However, in reviewing decisions based
§ 416.1450 Presenting evidence at a (b) Contents of the official record. All on an application for benefits, the
hearing before an administrative law judge. evidence upon which the administrative Appeals Council will only consider
* * * * * law judge relies for the decision must be additional evidence under paragraph
(c) Admissible evidence. Subject to contained in the record, either directly (a)(5) of this section if you show good
the provisions of § 416.1435, the or by appropriate reference. The official cause for not informing us about or
administrative law judge may receive record will include the applications, submitting the evidence as described in
any evidence at the hearing that he or written statements, certificates, reports, § 416.1435 because:
she believes is material to the issues, affidavits, medical records, and other (1) Our action misled you;
even though the evidence would not be documents that were used in making the (2) You had a physical, mental,
admissible in court under the rules of decision under review and any educational, or linguistic limitation(s)
evidence used by the court. additional evidence or written that prevented you from informing us
statements that the administrative law about or submitting the evidence earlier;
(d) Subpoenas. (1) When it is
judge admits into the record under or
reasonably necessary for the full (3) Some other unusual, unexpected,
presentation of a case, an administrative §§ 416.1429 and 416.1435. All exhibits
introduced as evidence must be marked or unavoidable circumstance beyond
law judge or a member of the Appeals your control prevented you from
Council may, on his or her own for identification and incorporated into
the record. The official record of your informing us about or submitting the
initiative or at the request of a party, evidence earlier. Examples include, but
issue subpoenas for the appearance and claim will contain all of the marked
exhibits and a verbatim recording of all are not limited to:
testimony of witnesses and for the (i) You were seriously ill, and your
production of books, records, testimony offered at the hearing. It also
will include any prior initial illness prevented you from contacting
correspondence, papers, or other us in person, in writing, or through a
documents that are material to an issue determinations or decisions on your
claim. friend, relative, or other person;
at the hearing. (ii) There was a death or serious
■ 26. In § 416.1468, revise the second
(2) Parties to a hearing who wish to illness in your immediate family;
subpoena documents or witnesses must sentence of paragraph (a) introductory
(iii) Important records were destroyed
file a written request for the issuance of text to read as follows:
or damaged by fire or other accidental
a subpoena with the administrative law § 416.1468 How to request Appeals cause;
judge or at one of our offices at least 10 Council review. (iv) You actively and diligently sought
business days before the hearing date, (a) * * * You should submit any evidence from a source and the
unless you show that your evidence you wish to have considered evidence was not received or was
circumstances meet the conditions by the Appeals Council with your received less than 5 business days prior
described in § 416.1435(b). The written request for review, and the Appeals to the hearing; or
request must give the names of the Council will consider the evidence in (v) You received a hearing level
asabaliauskas on DSK3SPTVN1PROD with RULES

witnesses or documents to be produced; accordance with § 416.1470. * * * decision on the record and the Appeals
describe the address or location of the ■ 27. Revise § 416.1470 to read as Council reviewed your decision.
witnesses or documents with sufficient follows: (c) If you submit additional evidence
detail to find them; state the important that does not relate to the period on or
facts that the witness or document is § 416.1470 Cases the Appeals Council will before the date of the administrative law
expected to prove; and indicate why review. judge hearing decision as required in
these facts could not be proven without (a) The Appeals Council will review paragraph (a)(5) of this section, or the
issuing a subpoena. a case if— Appeals Council does not find you had

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Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations 90997

good cause for missing the deadline to DEPARTMENT OF HOUSING AND Development, Office of Community
submit the evidence in § 416.1435, the URBAN DEVELOPMENT Planning and Development, 451 7th
Appeals Council will send you a notice Street SW., Suite 7204, Washington, DC
that explains why it did not accept the 24 CFR Part 91 20410 at 202–402–4492 (this is not a
additional evidence and advises you of [Docket No. FR 5891–F–02] toll-free number). Individuals with
your right to file a new application. The speech or hearing impairments may
RIN 2506–AC41 access this number via TTY by calling
notice will also advise you that if you
file a new application within 60 days the Federal Relay Service at 800–877–
Modernizing HUD’s Consolidated 8339 (this is a toll-free number).
after the date of the Appeals Council’s Planning Process To Narrow the
notice, your request for review will SUPPLEMENTARY INFORMATION:
Digital Divide and Increase Resilience
constitute a written statement indicating to Natural Hazards I. Executive Summary
an intent to claim benefits under
AGENCY: Office of the Assistant A. Purpose of This Rule
§ 416.340. If you file a new application
within 60 days of the Appeals Council’s Secretary for Community Planning and The purpose of this rule is to require
Development, HUD. States and local governments to evaluate
notice, we will use the date you
ACTION: Final rule. the availability of broadband access and
requested Appeals Council review as
the filing date for your new application. the vulnerability of housing occupied by
SUMMARY: HUD’s Consolidated Plan is a low- and moderate income households
■ 28. Revise § 416.1476 to read as planning mechanism designed to help to natural hazard risks, many of which
follows: States and local governments to assess may be increasing due to climate
their affordable housing and community change, in their Consolidated Planning
§ 416.1476 Procedures before the Appeals development needs and to make data-
Council on review. efforts. These evaluations are to be
driven, place-based investment conducted using readily available data
(a) Limitation of issues. The Appeals decisions. The Consolidated Planning sources developed by Federal
Council may limit the issues it process serves as the framework for a government agencies, other available
considers if it notifies you and the other community-wide dialogue to identify data and analyses (including State,
parties of the issues it will review. housing and community development Tribal, and local hazard mitigation
priorities that align and focus funding plans that have been approved by the
(b) Oral argument. You may request to from HUD’s formula block grant
appear before the Appeals Council to Federal Emergency Management Agency
programs. This rule amends HUD’s (FEMA)), and data that State and local
present oral argument. The Appeals Consolidated Plan regulations to require government grantees may have available
Council will grant your request if it that jurisdictions consider two to them. Where access to broadband
decides that your case raises an additional concepts in their planning Internet service is not currently
important question of law or policy or efforts. available or is minimally available (such
that oral argument would help to reach The first concept is how to address as in certain rural areas), States and
a proper decision. If your request to the need for broadband access for low- local governments must consider ways
appear is granted, the Appeals Council and moderate-income residents in the to bring broadband Internet access to
will tell you the time and place of the communities they serve. Broadband is low- and moderate-income residents,
oral argument at least 10 business days the common term used to refer to a including how HUD funds could be
before the scheduled date. The Appeals high-speed, always-on connection to the used to narrow the digital divide for
Council will determine whether your Internet. Such connection is also these residents. Further, where low- and
appearance, or the appearance of any referred to as high-speed broadband or moderate-income communities are at
other person relevant to the proceeding, high-speed Internet. Specifically, the risk of natural hazards, including those
will be in person, by video rule requires that States and localities that are expected to increase due to
that submit a Consolidated Plan climate change, States and local
teleconferencing, or by telephone.
describe the broadband access in governments must consider ways to
§ 416.1479 [Amended] housing occupied by low- and incorporate appropriate hazard
moderate-income households. If low- mitigation and resilience into their
■ 29. Revise the first sentence of income residents in the communities do
§ 416.1479 to read as follows: community planning and development
not have such access, States and goals, codes, and standards, including
After it has reviewed all the evidence jurisdictions must consider providing the use of HUD funds to accomplish
in the administrative law judge hearing broadband access to these residents in these objectives. These two planning
record and any additional evidence their decisions on how to invest HUD considerations reflect emerging needs of
received, subject to the limitations on funds. The second concept added to the communities in this changing world.
Appeals Council consideration of Consolidated Plan process requires Broadband provides access to a wide
additional evidence in § 416.1470, the jurisdictions to consider incorporating range of resources, services, and
Appeals Council will make a decision or resilience to natural hazard risks, taking products, which assist not only
remand the case to an administrative care to anticipate how risks will individuals and, but also communities,
law judge. * * * increase due to climate change, into in their efforts to improve their
development of the plan in order to economic outlooks. Analysis of natural
[FR Doc. 2016–30103 Filed 12–15–16; 8:45 am]
begin addressing impacts of climate
asabaliauskas on DSK3SPTVN1PROD with RULES

BILLING CODE 4191–02–P hazards, including the anticipated
change on low- and moderate-income effects of climate change on those
residents. hazards, is important to help ensure that
DATES: Effective Date: January 17, 2017. jurisdictions are aware of existing and
FOR FURTHER INFORMATION CONTACT: Lora developing vulnerabilities in the
Routt, Senior Advisor, Office of geographic areas that they serve that can
Community Planning and Development, threaten the health and safety of the
Department of Housing and Urban populations they serve.

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Document Created: 2018-02-14 09:07:22
Document Modified: 2018-02-14 09:07:22

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Dates		This final rule will be effective on January 17, 2017. However, compliance is not required until May 1, 2017.
Contact		Patrick McGuire, Office of Appellate Operations, Social Security Administration, 5107 Leesburg Pike, Falls Church, VA 22041, (703) 605-7100. 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.
FR Citation		81 FR 90987
RIN Number		0960-AH71
CFR Citation		20 CFR 404 20 CFR 405 20 CFR 416
CFR Associated		Administrative Practice and Procedure; Blind; Disability Benefits; Old-Age; Survivors; Disability Insurance; Reporting and Recordkeeping Requirements; Social Security; Disability Insurance; Public Assistance Programs; Reporting and Recordkeeping Requirements; Social Security; Supplemental Security Income (ssi); Administrative Practice and Procedure; Aged; Blind; Disability Benefits and Public Assistance Programs; Reporting and Recordkeeping Requirements; Supplemental Security Income (ssi)