VTC Final Rule Comments Requested 02-03-03

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Frequency

10 kHz–100 kHz ...
100 kHz–500 kHz
500 kHz–2 MHz ....
2 MHz–30 MHz .....
30 MHz–70 MHz ...
70 MHz–100 MHz
100 MHz–200 MHz
200 MHz–400 MHz
400 MHz–700 MHz
700 MHz–1 GHz ...
1 GHz–2 GHz .......
2 GHz–4 GHz .......
4 GHz–6 GHz .......
6 GHz–8 GHz .......
8 GHz–12 GHz .....
12 GHz–18 GHz ...
18 GHz–40 GHz ...

Field strength
(volts per meter)

The authority citation for these
special conditions is as follows:

Peak

Authority: 49 U.S.C. 106(g), 40113, 44701,
44702, 44704.

Average

50
50
50
100
50
50
100
100
700
700
2000
3000
3000
1000
3000
2000
600

50
50
50
100
50
50
100
100
50
100
200
200
200
200
300
200
200

The field strengths are expressed in terms
of peak of the root-mean-square (rms) over
the complete modulation period.

The threat levels identified above are
the result of an FAA review of existing
studies on the subject of HIRF, in light
of the ongoing work of the
Electromagnetic Effects Harmonization
Working Group of the Aviation
Rulemaking Advisory Committee.

The Special Conditions
Accordingly, pursuant to the
authority delegated to me by the
Administrator, the following special
conditions are issued as part of the type
certification basis for the Bombardier
Model BD–100–1A10 airplane.
1. Protection from Unwanted Effects
of High-Intensity Radiated Fields
(HIRF). Each electrical and electronic
system that performs critical functions
must be designed and installed to
ensure that the operation and
operational capability of these systems
to perform critical functions are not
adversely affected when the airplane is
exposed to high-intensity radiated
fields.
2. For the purpose of these special
conditions, the following definition
applies: Critical Functions: Functions
whose failure would contribute to or
cause a failure condition that would
prevent the continued safe flight and
landing of the airplane.

Applicability
As discussed above, these special
conditions are applicable to Bombardier
BD–100–1A10 airplanes. Should
Bombardier apply at a later date for a
change to the type certificate to include
another model incorporating the same
novel or unusual design feature, these
special conditions would apply to that
model as well, under the provisions of
§ 21.101(a)(1), Amendment 21–69,
effective September 16, 1991.

Issued in Renton, Washington, on January
9, 2003.
Ali Bahrami,
Assistant Director, Transport Airplane
Directorate, Aircraft Certification Service.
[FR Doc. 03–2422 Filed 1–31–03; 8:45 am]

Conclusion
This action affects only certain novel
or unusual design features on
Bombardier Model BD–100–1A10
airplanes. It is not a rule of general
applicability, and affects only the
applicant which applied to the FAA for
approval of these features on the
airplane. The FAA has determined that
notice and opportunity for public
comment are unnecessary, because the
FAA has provided previous
opportunities to comment on
substantially identical special
conditions and has fully considered and
addressed all the substantive comments
received. The FAA is satisfied that new
comments are unlikely and finds,
therefore, that good cause exists for
making these special conditions
effective upon issuance.

[Regulations Nos. 4 and 16]

List of Subjects in 14 CFR Part 25
Aircraft, Aviation safety, Reporting
and recordkeeping requirements.

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BILLING CODE 4910–13–P

SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
RIN 0960–AE97

Federal Old-Age, Survivors and
Disability Insurance and Supplemental
Security Income for the Aged, Blind,
and Disabled; Administrative Review
Process; Video Teleconferencing
Appearances Before Administrative
Law Judges of the Social Security
Administration
AGENCY:

Social Security Administration

(SSA).
ACTION: Final rules with request for
comment.
SUMMARY: We are revising our rules to
allow us to conduct hearings before
administrative law judges (ALJs) at
which a party or parties to the hearing
and/or a witness or witnesses may
appear before the ALJ by video
teleconferencing (VTC). The revised
rules provide that if we schedule your
hearing as one at which you would

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appear by VTC, rather than in person,
and you object to use of that procedure,
we will reschedule your hearing as one
at which you may appear in person
before the ALJ. These revisions will
provide us with greater flexibility in
scheduling and holding hearings,
improve hearing process efficiency, and
extend another service delivery option
to individuals requesting a hearing.
Although we are issuing these rules as
final rules, we are also requesting
comments on a provision of the rules
that involves a significant change from
the proposed rules we previously
published concerning our use of VTC.
DATES: These rules are effective March
5, 2003. To be sure your comments are
considered, we must receive them by
April 4, 2003.
ADDRESSES: You may give us your
comments by using our Internet site
facility (i.e., Social Security Online) at
http://www.ssa.gov/regulations; by email to http://www.regulations@ssa.gov;
by telefax to (410) 966–2830; or by letter
to the Commissioner of Social Security,
PO Box 17703, Baltimore, MD 21235–
7703. You may also deliver them to the
Office of Process and Innovation
Management, Social Security
Administration, L2109 West Low Rise
Building, 6401 Security Boulevard,
Baltimore, MD 21235–6401 between 8
a.m. and 4:30 p.m. on regular business
days. Comments are posted on our
internet site, or you may inspect them
physically on regular business days by
making arrangements with the contact
person shown below.
FOR FURTHER INFORMATION CONTACT:
Martin Sussman, Regulations Officer,
Social Security Administration, Office
of Regulations, 100 Altmeyer Building,
6401 Security Boulevard, Baltimore, MD
21235–6401, (410) 965–1767 or TTY 1–
800–966–5906, for information about
this notice. For information on
eligibility or filing for benefits, call our
national toll-free number, 1–800–772–
1213 or TTY 1–800–325–0778, or visit
our Internet site, Social Security Online,
at http://www.ssa.gov.
SUPPLEMENTARY INFORMATION:
Background
Nationally, over 500,000 requests for
a hearing before an ALJ are filed with us
each year. Hearings have traditionally
been held with all participants (the
party(ies) to the hearing, the ALJ, any
representative(s) appointed by the
party(ies), any witness(es), any
translator(s), and any other persons
whom the ALJ considers necessary or
proper to the hearing) present at the
same location: either a hearing office or
a remote hearing site. ALJs hold

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Federal Register / Vol. 68, No. 22 / Monday, February 3, 2003 / Rules and Regulations
hearings at remote hearing sites, which
are generally at least 75 miles from a
hearing office, to accommodate those
individuals who do not live near a
hearing office.
Approximately 40 percent of hearings
are held at remote hearing sites.
To make travel to remote hearing sites
as cost effective as possible, hearing
offices wait until they have a sufficient
number of requests for hearing to
schedule a full day or, if travel to a
remote hearing site requires an
overnight stay, several days of hearings.
Because of the need to accrue a docket,
ALJs travel to some remote hearing sites
infrequently. Because many remote
hearing sites are in less-populous areas,
it can be difficult to find a needed
medical and/or vocational expert
witness(es) to travel to these sites, and
this difficulty may further delay
scheduling a hearing. ALJs also travel
from their assigned hearing offices to
assist other hearing offices when the
need arises.
Whether to conduct hearings at
remote sites or assist other hearing
offices, the time ALJs spend traveling
could be used to perform other
adjudicatory responsibilities.
In 1996 we published Social Security
Ruling (SSR) 96–10p, Electronic Service
Delivery (61 FR 68808, December 30
1996). In SSR 96–10p, we explained that
we planned to explore ways for
claimants to interact with us
electronically. We also explained that
we would not require claimants to work
with us electronically, but that we
would use technology to provide
options for different service deliveries.
VTC was one of the technologies we
identified as having the potential to
improve claimant service. VTC provides
real-time transmission of audio and
video between two or more locations
and permits individuals to see, hear,
and speak with each other as though
they were at the same location.
As we explained in the Notice of
Proposed Rulemaking (NPRM) that we
published concerning these rules (66 FR
1059, January 5, 2001), we decided to
propose conducting hearings by VTC
based on testing conducted in the State
of Iowa that demonstrated that VTC
procedures can be effectively used
where large scale, high quality VTC
networks exist and claimants want to
participate in VTC procedures because
doing so reduces the distances they
must travel to their hearings. In reaching
that decision, we considered and
discounted the results at two other test
sites, Albuquerque-El Paso and
Huntington-Prestonburg, because the
tests at those sites offered no travel

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benefits to the claimants and resulted in
low participation rates.
In the testing of VTC that we have
been conducting since 1996 in the State
of Iowa, which has a large VTC network,
no one electing use of VTC procedures
has had to travel more than about 20
miles from his or her home to have a
hearing, and the travel typically
required of claimants currently is only
about 5 miles. The rate of claimant
participation in the Iowa test currently
exceeds 95 percent; that is, over 95
percent of the claimants offered a
hearing using VTC procedures agree to
the use of those procedures.
In a survey of participants in the Iowa
test, a large percentage of the
respondents rated hearings using VTC
procedures as ‘‘convenient’’ or ‘‘very
convenient,’’ and overall service as
either ‘‘good’’ or ‘‘very good.’’ Test data
showed that processing time for these
hearings was substantially less than for
hearings conducted in person at remote
sites during the same time period, and
that the ratio of hearings held to
hearings scheduled was significantly
higher for hearings using VTC
procedures than for hearings conducted
in person. Being able to hold hearings
as scheduled increases our efficiency
because we do not have to recontact the
individual to determine why he or she
did not appear at a scheduled hearing
nor reschedule the hearing (which can
be time consuming, especially when an
expert witness(es) has been scheduled
to testify). Further, an ALJ does not
spend time waiting for someone who
does not appear, as would be the case
in a hearing conducted in person at a
remote site.
Based on all these factors—claimant
satisfaction, ability to provide more
timely hearings, savings in ALJ travel
time, faster case processing, and higher
ratio of hearings held to hearings
scheduled—we decided that conducting
hearings by VTC is an efficient service
delivery alternative. We also decided
that scheduling a hearing for use of
VTC, rather than asking someone to
elect a hearing using VTC, as we have
been doing in our testing of VTC, would
improve hearing office efficiency and
would permit us to provide faster access
to a hearing for some individuals.
We plan to begin using VTC facilities
in the servicing area of a hearing office
when the Associate Commissioner for
Hearings and Appeals determines that
appearances at hearings conducted in
the area can be conducted more
efficiently by VTC than in person. We
foresee initially scheduling VTC
appearances where absent use of VTC:
• We would need to accrue a docket
for a remote hearing site.

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5211

• An ALJ would need to travel to
assist another hearing office.
• An expert witness(es) or
appropriate medical specialist(s) would
not be available for a hearing site. (In
such a case, all participants could be at
different locations; for example, the ALJ
at a hearing office, the individual at a
remote hearing site or another hearing
office, and the expert witness(es) at a
third location.)
At first, we plan to locate most remote
sites for using VTC to conduct
appearances either in space where we
have a long-term lease or in another
federal building. We are investigating
sharing VTC facilities with other federal
agencies and states, and, if we can
ensure privacy, we may eventually rent
commercial space to expand use of VTC
as a service delivery option. Calling into
SSA’s VTC network from private
facilities, such as facilities owned by a
law firm, may also be possible.
Regardless of the type of facility, we
will make certain that:
• The individual has the same access
to the hearing record when appearing by
VTC as he or she would have if
appearing in person before the ALJ.
• There is a means of transmitting
and receiving additional evidence
between all locations and all
participants.
• An assistant is present at the VTC
site to operate the equipment and
provide other help, as required.
• The audio/video transmission is
secure and the individual’s privacy is
protected.
We will follow the same procedures
for audiotaping hearings that we
conduct using VTC that we do for
hearings where all the participants
appear in person. We have no plans to
videotape hearings in which a party or
a witness appears by VTC. Should there
be a problem with the VTC equipment,
before or during a hearing, we will
reschedule the hearing as we do now
when unforeseen circumstances require
us to reschedule a hearing: at the
earliest time possible based on the
request for hearing filing date.
We reserve the right not to schedule
an appearance by VTC for someone who
asks to appear by VTC. In many
locations, especially in the near term,
we may not have the capability to
accommodate the request, and the ALJ
may determine that an appearance must
be conducted in person even where VTC
capability exists. As access to VTC
expands, we will generally
accommodate requests to appear by VTC
as space and time permit.
Despite the fact that conducting
hearings by VTC has the potential to
improve service, we will not require any

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individual to appear at his or her
hearing by VTC if the individual objects
to that procedure at the earliest possible
opportunity before the time scheduled
for the hearing. Under these final rules,
if a party so objects to making his or her
appearance by VTC, we will reschedule
the hearing as one at which the
individual may appear in person.
When we reschedule a hearing
because a party objects to making his or
her appearance by VTC, we will
reschedule the hearing at the earliest
time possible based on the request for
hearing filing date. Where necessary, to
expedite the rescheduling, we will give
the party the opportunity to appear in
person at the hearing office or any other
hearing site within the service area of
the hearing office at which we are first
able to schedule a hearing. The party’s
travel expenses to the remote site or to
the hearing office, and the travel
expenses of his or her appointed
representative, if any, and the travel
expenses of any unsubpoenaed
witnesses we determine to be
reasonably necessary, will be
reimbursed in accordance with the
provisions of 20 CFR 404.999a–
404.999d and 416.1495–416.1499.
To ensure that a party fully
understands the right to decline to
appear by VTC, a notice scheduling an
individual to appear at his or her
hearing by VTC will clearly state:
• What it means to appear by VTC;
• That we have scheduled the
individual’s appearance to be by VTC;
• That we will schedule a hearing at
which the individual may appear in
person if the individual tells us that he
or she does not want to appear by VTC;
and
• How to tell us that.
We will evaluate hearings using VTC
procedures to ensure that there is no
significant difference in the outcome of
hearings conducted using VTC and
those conducted in person and that we
maintain a high degree of accuracy in
decisions made based on hearings using
VTC. We will also ensure that
individuals:
• Understand that they are not
required to appear at their hearings by
VTC;
• Know how to tell us if they do not
want to appear by VTC;
• Receive a full and fair hearing; and
• Are satisfied with the VTC process
in relation to their appearance and the
appearances of any witnesses.
The Final Regulations
We are revising 20 CFR 404.929 and
416.1429 to state that you may appear
at your hearing in person or by VTC. We
are revising 20 CFR 404.936 and

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416.1436 to state that we may schedule
your appearance or that of any
individual appearing at the hearing to
be by VTC and that, if we schedule you
to appear by VTC and you tell us that
you want to appear in person, we will
schedule a hearing at which you may
appear in person. We are revising 20
CFR 404.938 and 416.1438 to state that
if we schedule you or anyone to appear
at your hearing by VTC, the notice of
hearing will tell you that and provide
information about VTC appearances and
about how you can tell us that you do
not want to appear by VTC. Finally, we
are revising 20 CFR 404.950(a) and (e)
and 416.1450(a) and (e) to state that a
party or a witness may appear at a
hearing in person or by VTC.
Public Comments
We published these regulatory
provisions in the Federal Register as an
NPRM on January 5, 2001 (66 FR 1059).
We provided the public with a 60-day
comment period. In response to the
NPRM, we received seven comment
letters from the following sources: the
Railroad Retirement Board (RRB), the
Disability Law Center, the National
Organization of Social Security
Claimants Representatives, the
Association of Administrative Law
Judges, and seven ALJs commenting as
individuals.
Because some of the comments were
detailed, we have condensed,
summarized, or paraphrased them
below. However, we have tried to
summarize commenters’ views
accurately and to respond to all of the
significant issues raised by the
commenters that were within the scope
of the proposed rules.
Based on our consideration of the
comments received, we have made a
number of changes in the rules as
proposed in the NPRM. We have also
made a number of decisions about
administrative practices we will follow
in using VTC procedures. We discuss
our response to each of the comments
below.
In the NPRM we spoke of ‘‘VTC
hearings’’ and ‘‘in-person hearings’’ as a
way of distinguishing easily between
hearings at which VTC procedures are
used and those at which all the
participants are at the same location.
The public comments received reflected
our use of that language (see below)
without raising any specific issue about
it. However, from our general
consideration of the comments and
further evaluation of the use of VTC
procedures, we have concluded that we
should not rely on language that could
erroneously suggest that there are two
types of hearings and should instead use

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language that reflects the fact that all
claimants are afforded an opportunity
for one type of hearing—i.e., a hearing
at which the claimant’s rights to
procedural due process, including the
right to appear and present evidence,
are fully protected. Speaking of hearings
as either ‘‘in-person’’ or ‘‘VTC’’ hearings
would also not accurately reflect the
circumstances of hearings in which
some of the participants appear before
the ALJ in person and some appear by
VTC.
The distinctions between hearings at
which all of the participants are at the
same location and hearings at which
some or all of the involved individuals
participate by VTC are secondary
distinctions. The distinctions involve
the manner in which the parties and the
witnesses make their appearances before
the ALJ (i.e., in person or by VTC), not
fundamental differences that cause the
hearings to be of different types. We
reflect that view in the description of
the final rules set forth above, in the
discussion of our responses to the
comments, and in specific changes we
are making in the final rules. However,
our comment summaries are couched in
the terms we used in the NPRM.
We further discuss these revisions,
and other changes in the final rules that
are not in direct response to the
comments, following the discussion of
our responses to the comments. See
below under the heading, Additional
Changes.
Comment: The RRB commented that
it was very pleased to see SSA’s
proposal. The RRB also indicated that it
would be interested in determining the
feasibility of its hearing officers using
the VTC facilities of SSA on a fee basis
to conduct some of its hearings—to
reduce the significant travel in which
the RRB is required to engage to conduct
its hearings.
Response: As we noted above and in
the NPRM, we are investigating whether
we can share facilities with other federal
agencies and states. We will pursue
discussions with the RRB in that regard.
Comment: One organization
commented that when claimants who
need hearings at a remote site want to
exercise their right to an in-person
hearing, they will probably face even
longer waits for their hearings, and that
SSA must take steps to minimize the
delays these claimants will face.
Response: In considering this
comment, we have concluded that
frequent use of VTC procedures in a
remote area could delay the hearings of
individuals in that area who do not
want to appear by VTC. That is the case
because the participation of other
individuals in VTC procedures will

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Federal Register / Vol. 68, No. 22 / Monday, February 3, 2003 / Rules and Regulations
eliminate some or most of the pending
hearings that could go to make up a
complete docket for an ALJ trip to the
affected remote site.
To ensure claimants in areas of high
VTC usage a meaningful option to
appear in person, we will make it our
practice in those areas to afford
claimants who do not want to appear by
VTC the opportunity to appear in
person either at the hearing office
(where hearings are held without need
to accumulate ALJ travel dockets), or at
any remote site in the hearing office’s
service area (including, but not limited
to, the designated remote site for the
claimant’s place of residence). We will
schedule a hearing where the claimant
may appear in person at the earliest
possible time based on the filing date of
the claimant’s request for hearing;
election of the option to appear in
person will not cause the claimant to
lose his or her place in the queue of
individuals awaiting entry into the
process for scheduling hearings.
In following these practices, we will
apply our normal rules for reimbursing
the travel expenses that claimants, their
representatives, and any unsubpoenaed
witnesses incur in traveling to the
hearing office or to any remote site in
the service area for hearings (see
§§ 404.999a–404.999d and 416.1495–
416.1499). A claimant’s decision not to
accept a scheduled appearance by VTC
will not prevent reimbursement of travel
expenses under §§ 404.999c(d)(4) and
416.1498(d)(4).
Comment: An organization
commented that choice of hearing sites
should be explained at an early,
informal conference, and that the choice
should be deferred where a claimant
wants to appoint a representative. The
commenter noted that ensuring that
claimants make an informed choice of
hearing site would further SSA’s goal of
reducing the rescheduling of hearings.
Response: In areas in which the
Associate Commissioner for Hearings
and Appeals has determined that
hearings can be conducted more
efficiently using VTC than by having
appearances made in person, it will be
our practice in our pre-hearing activities
to provide claimants with information
about VTC procedures and an
opportunity to ask questions about and
to state a preference for or against use
of those procedures.
When the ALJ determines that a case
is ready to be scheduled for hearing and
sets the time and place of the hearing,
the ALJ will also decide whether the
claimant’s appearance should be
scheduled to occur by VTC or in person.
In doing that, the ALJ will consider any
stated preference of the claimant or the

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representative for or against appearing
by VTC, as well as the availability of
VTC technology and any other factors,
such as a claimant’s loss of visual and
auditory capacities, that may affect how
the appearance should be conducted.
When we issue a notice of hearing
advising a claimant that his or her
appearance has been scheduled to be by
VTC, the claimant will then have an
absolute right to decline to appear by
VTC, irrespective of any preference he
or she may have previously stated in
this regard, and to choose to appear in
person, under the practices on
rescheduling and use of in-person
appearance sites that we have described
above. A timely statement by the
claimant of any objection to appearing
by VTC or of a desire to appear in
person will constitute good cause for
rescheduling the claimant’s appearance
to be in person (see §§ 404.936(e) and
416.1436(e) as revised in these final
rules).
Our policy of giving claimants their
option to decline to appear by VTC after
issuance of the notice of hearing is
designed to promote the effective use of
VTC procedures while also maintaining
a meaningful option for claimants who
want to appear in person. We believe
that claimants will carefully consider
whether they should exercise this
option since doing so could delay the
occurrence of their hearings, even under
the rescheduling and site-usage
practices we have described above for
expediting the rescheduling of hearings
to allow in-person appearances. We
believe this policy will help to ensure
that VTC procedures will be frequently
used where available and, thus, that
these procedures will be effective in
improving the overall efficiency of the
hearings process, even though some
hearings will have to be rescheduled
because claimants decide against
appearing by VTC. We believe the
policy is warranted with respect to the
individuals affected because the option
of appearing by VTC will allow them to
have their hearings before an ALJ in the
shortest possible time.
Comment: An ALJ commented that
claimants should not be given the
option of demanding an in-person
hearing instead of a VTC hearing. The
commenter’s reasoning was that VTC
either is or is not in accord with due
process and, if it is (as this commenter
believes), the claimant has no legal basis
for insisting on in-person proceedings.
The commenter further contended that
giving this option would be based, not
on a legal right, but on an attempt to
accommodate the claimant’s
preferences, and that mere preferences
should be outweighed by the costs to

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5213

the Agency and the public of
accommodating those preferences for a
hearing in a more costly forum. The
commenter reported that it was his
impression—based on pre-ALJ
experience with use of VTC in criminal
proceedings—that the participants in
proceedings conducted by VTC paid
little attention to the medium once the
proceedings began. In this commenter’s
view, there is no legitimate reason to
object to VTC procedures and many less
than legitimate reasons for preferences
against those procedures, including
judge shopping and claimant discomfort
at being ‘‘on TV.’’
Response: We believe that the hearing
proceedings we conduct by VTC will be
fundamentally fair and that they will
fully protect the claimant’s right to
procedural due process. However, as
explained below, there are sound
reasons for assuring that all claimants
retain an opportunity to appear in
person at their hearings. Preserving that
opportunity for claimants is also
consistent with our general policy, as
explained in SSR 96–10p, of using
technology to provide claimants an
optional way of communicating with us.
That certain procedures will provide
due process does not mean that there
are no legal issues to consider regarding
those procedures. Use of VTC
technology in administrative hearings is
relatively new. In these final rules, we
are interpreting the word ‘‘hearing’’ as
used in sections 205(b)(1) and
1631(c)(1)(A) of the Social Security Act
(the Act) to include hearings at which
the claimant will appear by VTC, a
technology that was not available when
these statutes were created, as well as
hearings at which the claimant appears
in person before the ALJ. Our earliest
regulations interpreting the hearing
provisions of the Act specified that the
claimant had a right to request a hearing
‘‘before’’ the decisionmaker (20 CFR
403.707, 1940), and our current
regulations specify that claimants may
appear ‘‘in person’’ at the hearing (20
CFR 404.929 and 416.1429), and that
they have a ‘‘right to appear before the
administrative law judge, either
personally or by means of a designated
representative * * *’’ (20 CFR
404.950(a) and 416.1450(a)). Therefore,
we believe it is legally prudent to ensure
that all claimants retain the opportunity
to appear in person.
Claimant credibility is an important
issue in many of our hearings, and some
claimants may have strong opinions
about whether they can best project
their own credibility by appearing in
person as opposed to appearing by VTC.
Preserving an option for claimants to
appear in person should increase their

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comfort level in appearing by VTC and
help to ensure that they perceive the
hearing process as fair. The satisfaction
of claimants with their hearing
experiences is, of course, an important
consideration in the administration of
the Social Security hearings process.
It is also important that we try to
ensure that preferences against
appearing by VTC do not undermine the
effectiveness with which we are able to
use VTC, as could happen if such
preferences frequently caused claimants
to decline to appear by VTC. However,
we believe we should pursue that end
by promoting and continually
improving the claimant-service
advantages of VTC while also preserving
the opportunity of claimants to appear
in person.
Comment: An organization stated that
we should guarantee the right of
claimants to an in-person hearing to the
extent of allowing the claimant to
withdraw consent to participate in VTC
proceedings even up to the point of
arriving at the VTC site (because they
may not realize that they do not want
to proceed with a VTC appearance until
they arrive at the site), and by ensuring
that claimants do not lose their place in
queue if they decline (or withdraw
consent for) a VTC hearing.
Response: Under the provisions of
§§ 404.936 and 416.1436, as they
currently exist and as revised when
these final rules become effective,
claimants who object to the time or
place of the hearing are required to
‘‘notify the [ALJ] at the earliest possible
opportunity before the time set for the
hearing.’’ Under our existing provisions
on dismissing requests for hearing based
on failure to appear at a scheduled
hearing, a request for hearing may be
dismissed if a claimant does not appear
at the scheduled hearing and has not
given the ALJ, before the time set for the
hearing, a good reason why he or she
cannot appear at the scheduled hearing.
(See §§ 404.957(b) and 416.1457(b),
which we are not revising.) Under the
above provisions, a claimant who has
been scheduled to appear by VTC may
establish good cause for changing the
time or place of the hearing by notifying
the ALJ at the earliest possible
opportunity before the time set for the
hearing that he or she has an objection
to appearing by VTC. The notice of
hearing will advise the claimant of that
requirement. A timely statement by the
claimant of any objection to appearing
by VTC will cause the ALJ to find that
there is good cause to change the time
and place of the scheduled hearing and
to reschedule the hearing for a time and
place at which the claimant may appear
in person (see §§ 404.936(e) and

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416.1436(e)). No hard and fast rule for
the latest time for a claimant to object
to appearing by VTC may be set because
many different factors (including the
delayed appointment of a representative
who opposes participation in VTC)
could affect whether the claimant has
notified the ALJ of his or her objection
at the earliest possible time. In addition,
as we discussed above, claimants who
decide to decline to appear by VTC will
not lose their place in the queue of
individuals awaiting hearings.
Comment: An organization
commented that while VTC hearings
have the potential to be an improvement
over some in-person hearings (such as
those conducted in hotel rooms), there
are concerns and we should not
schedule a VTC hearing and require the
claimant to respond affirmatively to
choose an in-person hearing. This
commenter noted that many claimants
with mental impairments, cognitive
limits, low education, and
communication limitations will have
difficulty understanding and responding
to the notice.
Response: As discussed above, we
believe that the policy of generally
requiring claimants to take action to opt
out of a scheduled appearance by VTC
will be administratively beneficial and
otherwise warranted. For the reasons set
forth below, we also believe that the
policy of generally requiring claimants
affirmatively to decline to appear by
VTC will not involve any significant
risks for claimants, including those
individuals who do not have an
appointed representative and who may
have mental, educational, and linguistic
limitations—
• Hearing office staff will have
provided claimants with information
concerning their options for how they
may appear at the hearing during the
pre-hearing case preparation that occurs
before the notice of hearing is issued;
• The ALJ will have discretion to
prevent issuance of a notice scheduling
a claimant to appear by VTC in
instances in which the ALJ concludes
that there are circumstances that make
it necessary not to have the claimant
appear by VTC;
• The notices of hearing used to
schedule claimants to appear by VTC
will explain VTC procedures and the
option to appear in person in clear,
easily understood language; and
• The claimant will be able to opt out
of appearing by VTC merely by stating
a desire not to appear in that way or a
desire to appear in person.
Comment: An organization of
individuals who represent claimants in
proceedings before us reported that it
generally supported the proposed rules

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and the use of VTC hearings, so long as
the right to a full and fair hearing is
adequately protected and the quality of
VTC hearings is ensured. This
organization reported that its members
had had mixed experiences with the
VTC tests and noted that while a
member who had experience with one
VTC hearing was dissatisfied with the
quality of the VTC transmission (which
was not sufficient to allow the ALJ to
perceive shortness of breath and
sweating experienced by the claimant),
another member who had represented
several hundred claimants in the Iowa
test now preferred VTC to in-person
hearings because of the calming effect
that VTC procedures had on his clients,
the reduction in claimant travel, and the
quality of VTC facilities. This
organization offered the general
comment that its members could be
expected not to encourage their clients
to participate in VTC hearings if there
is no travel advantage and the quality of
the hearing experience is inadequate.
Response: We believe that providing
high quality VTC facilities and travel
advantages for claimants who use VTC
services will be of critical importance in
ensuring the active cooperation of
claimant representatives in encouraging
their clients to use those services. We
will not achieve our goals in
implementing VTC procedures unless
claimant representatives support their
use. For that reason, and because
providing claimants high quality
hearing experiences with as little
inconvenience to them as reasonably
possible is inherently part of our overall
mission, we intend to ensure that our
VTC facilities are of high quality and
that the travel claimants are required to
undertake to attend their hearings is
reduced by participation in our VTC
services. The Associate Commissioner
for Hearings and Appeals will consider
those factors in determining whether a
service area should be designated as
ready for VTC use.
Comment: An organization
commented that we should establish
procedures to ensure that files can be
reviewed and that additional evidence
is associated with the file. The
organization noted that problems have
occurred in these respects at in-person,
remote-site hearings, especially where
the hearing is conducted by a visiting
ALJ, and these problems would also
exist in VTC hearings.
Response: As we stated in the NPRM,
we will make certain that claimants
participating in VTC procedures will
have the ‘‘same access’’ to the hearing
record as individuals not participating
in those procedures. It is our intent in
this regard to ensure that claimants who

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make in-person appearances and those
who participate in VTC procedures will
have equal and sufficient access to the
record. The sufficiency of record access
in an area will be one of the factors the
Associate Commissioner for Hearings
and Appeals considers in deciding
whether to declare an area ready for use
of VTC procedures.
Comment: While only one of the ALJs
who commented on the NPRM opposed
the proposal to give claimants the right
to choose not to have their hearings
conducted by VTC, all but one of the
commenting ALJs strongly opposed the
proposal to allow claimants to veto the
use of VTC to conduct the appearances
of vocational experts (VEs) and medical
experts (MEs). (The comments of the
remaining ALJ dealt with matters that
were not within the scope of the
NPRM.) The ALJs who opposed this
provision included five ALJs who
conducted hearings in the Iowa test and
the Association of Administrative Law
Judges.
The reasons offered for opposing this
proposal included that it would defeat
the purpose of using VTC as a way to
obtain expert testimony when it is
impractical for the expert to appear in
person, and that it could force ALJs to
forgo needed testimony or to take
testimony through the time consuming
and unwieldy method of written
interrogatories. Concern was expressed
that the right to veto the appearance of
an expert by VTC could be used to
prevent the taking of expert testimony
that might be adverse to the claimant
and to facilitate ‘‘expert shopping.’’ It
was pointed out that claimants can
already object to witnesses based on
bias or qualifications. The view was also
expressed that due process is fully
accorded to the claimant if the claimant
can see and cross-examine the expert
and confront the expert with
documentary evidence.
The ALJs who commented based on
their experience in the Iowa test
strongly emphasized the practical
problems that allowing claimants to
veto having an expert testify by VTC
would cause. These ALJs stated that
using VTC to take the testimony of VEs
is necessary to utilize these experts
effectively because the cost of a VE’s
appearance can be reduced if, as is
possible using VTC procedures, a docket
of multiple appearances can be arranged
for the expert. They also emphasized the
value of VTC in reducing the problems
involved in scheduling hearings, citing
the example of how much easier it is to
make arrangements for one VE to appear
by VTC in four hearings occurring on a
given day at four different sites than it
is to arrange for four VEs to make in-

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person appearances, at odd times in
their workdays, at four sites.
The ALJs involved in the Iowa test
further emphasized that the practical
problems in not using VTC to take VE
testimony are greatly compounded
when it comes to securing the testimony
of MEs. They reported that it is only
through VTC that they are able to
provide ME testimony for hearings
being held in remote sites, and that MEs
will not travel to remote sites when it
is technically possible to testify in
hearings being held at such sites via
VTC. These ALJs also reported that it
was their experience that it is almost
impossible to get MEs to testify in the
larger urban areas where the hearing
offices are located, and that it is
sometimes necessary to rely on MEs
testifying from the medical centers in
Ames and Iowa City even in cases being
heard in the West Des Moines area.
Response: In considering this
comment, we have concluded that
claimants should not be empowered to
veto use of VTC to take the testimony
of expert witnesses. Therefore, we have
deleted from §§ 404.938 and 416.1438
the proposed provisions that would
have given claimants that power.
Because this represents a significant
change from the proposed rule, we have
decided to offer an additional
opportunity for public comment on this
provision.
Under these final rules, decisions as
to whether hearings will be conducted
with a witness or witnesses appearing
by VTC will be made by the ALJ. The
claimant may state objections to a
witness appearing by VTC, just as they
may state objections to any aspect of the
hearing, and they may object to a
witness on the basis of perceived bias or
lack of expertise. However, a claimant’s
objection to a witness appearing by VTC
will not prevent use of VTC for the
appearance, unless the ALJ determines
that the claimant’s objection is based on
a circumstance that warrants having the
witness appear in person.
The analysis of the commenting ALJs
concerning the impracticalities of giving
claimants veto power over the medium
whereby expert witnesses make their
appearance has caused us to reevaluate
our proposal in that regard. We believe
these commenters are correct in
indicating that giving claimants that
power would undermine one of the
primary practical benefits of using VTC
procedures and adversely impact our
ability to use those procedures
effectively to improve the hearings
process. The commenters also
effectively emphasize the significance of
the positive practical benefits that can
flow from relying on VTC procedures in

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scheduling and conducting the
appearances of expert witnesses.
An important point made in this
comment is that implementation of VTC
procedures reduces the readiness of
experts to travel to remote sites. This is
a result that might be expected logically,
we believe, and the experience of the
ALJs in the Iowa test bears out its
occurrence.
Unless we ensure ALJ authority to use
VTC to take expert testimony by not
empowering claimants to veto its use for
that purpose, the reduced readiness of
expert witnesses to travel when VTC
appearances are technologically
possible will adversely affect our ability
to preserve a reasonable opportunity for
claimants to appear in person if they
choose to opt out of scheduled
appearances by VTC. If the authority of
ALJs to secure expert testimony by VTC
is not ensured, the reduced willingness
of experts to travel when VTC
technology is available could also
reduce the efficiency with which we are
able to schedule the appearances of
experts at the hearings of individuals
who live near hearing offices in urban
areas and appear in person in those
offices for their hearings.
MEs and VEs testify as impartial
witnesses. They testify based on the
evidence entered into the record and not
based on any examination or personal
evaluation of the claimant. Where they
testify by VTC and their testimony is
adverse to a party’s claim, the party and
his or her representative, if any, will
have a complete opportunity to confront
and examine the witness regarding the
matters that are important with respect
to expert testimony—i.e., the expertise
of the witness and the accuracy of his
or her testimony.
Affording claimants the power to veto
the appearance of expert witnesses by
VTC would be inconsistent with our
existing practices and instructions
regarding use of interrogatories to secure
the testimony of expert witnesses. While
emphasizing the preferability of
securing live testimony where feasible,
and requiring the ALJ to consider and
rule on any claimant objection to the
use of interrogatories, our instructions
do not mandate non-use of
interrogatories merely because a
claimant objects to their use. See
Hearings, Appeals and Litigation Law
Manual (HALLEX), sections I–2–530, I–
2–542, and I–2–557. Thus, allowing
claimants to veto the live testimony that
experts can give by VTC would invest
claimants with an authority that they do
not currently have with respect to
interrogatories.
Under these final rules, ALJs will
have discretion to determine that the

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appearance of any individual must be
conducted in person. Thus, to the extent
that circumstances could arise in which
it would be advisable to schedule an inperson appearance by an expert witness
even though a VTC appearance would
be possible technologically, the ALJ may
schedule such an appearance. That
action could be appropriate, for
example, where the claimant alleges
personal bias or dishonesty on the part
of the expert and the ALJ determines
that the claimant should have the
opportunity to cross-examine the
witness in person because of the greater
immediacy of an in-person
confrontation.
Comment: An organization
commented that the ALJ has exclusive
control over the way hearings are
conducted, so long as they are
fundamentally fair and comport with
requirements of due process, and such
authority necessarily implies authority
to settle disputes concerning the
appropriate form of a hearing in a
particular case. This commenter was
concerned that the proposed rules did
not expressly reflect the authority of
ALJs to determine if a hearing will be
conducted wholly or in part by VTC,
and that the lack of clarity of these rules
in this regard could lead to confusion
and litigation.
Response: We agree that the proposed
rules were unclear in this respect. In
§§ 404.936 and 416.1436, the final rules
clearly reflect the authority of the ALJ
to determine how hearings are
conducted with respect to the use of
VTC to conduct appearances, while also
setting forth specific policies that direct
how that authority is to be exercised.
In paragraph (c) of §§ 404.936 and
416.1436, the final rules provide that in
setting the time and place of the
hearing, the ALJ will determine if the
appearance of the claimant or that of
any other individual who is to appear at
the hearing will be made in person or
by VTC. Determining the medium by
which appearances will be made is part
of the ALJ’s function of setting the time
and place of the hearing because
determining the hearing’s ‘‘place’’
requires consideration of whether VTC
technology will be used to conduct an
appearance or appearances. See below
under Additional Changes regarding the
definition of ‘‘place’’ included in the
final rules.
The final rules include provisions in
paragraph (c) of §§ 404.936 and
416.1436 that require the ALJ to direct
that the appearance of an individual be
conducted by VTC if VTC technology is
available to conduct the appearance, use
of VTC to conduct the appearance
would be more efficient than

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conducting the appearance in person,
and the ALJ does not determine that
there is a circumstance preventing use
of VTC to conduct the appearance. In
setting these guidelines, it is our intent
that ALJs routinely schedule
appearances by VTC in areas that we
have designated as ready for VTC use.
An appearance in person should be
scheduled in these areas only if the ALJ
determines that there is a circumstance
in the particular case that would make
it inappropriate to use VTC in that case.
The final rules also include
provisions requiring the ALJ to find
good cause to change a scheduled VTC
appearance of a party to an in-person
appearance if the party objects to
appearing by VTC. These provisions are
located in paragraph (e) of §§ 404.936
and 416.1436.
Comment: An organization
commented that VTC hearings have not
been shown to equal the quality and
accuracy of in-person hearings and that
national rollout should await the study
referenced in the NPRM to ensure that
claimants have access to full and fair
hearings.
Response: We anticipate that we will
gradually rollout use of VTC procedures
nationally as we are able to make highquality VTC technology available in
different areas. Under that approach,
claimants and the hearing process will
be able to benefit from VTC technology
as soon as it is available, and we will
be able to improve our VTC procedures
as we move toward full national
implementation.
Based on our experience in using
VTC, we believe that VTC does not
change adjudicative quality or change
decisional outcomes. We will continue
to assess the results of VTC procedures
as we go forward. We will consider the
accuracy and efficiency of VTC
procedures and the reactions of
claimants and their representatives to
those procedures.
Additional Changes
Our decision not to use terminology
referring to a hearing as a ‘‘video
teleconference hearing’’ or an ‘‘inperson hearing,’’ and to use instead
language that distinguishes between
appearances made in-person and by
VTC, has resulted in editorial changes
throughout the rules as proposed in the
NPRM. These changes include
eliminating the phrase ‘‘and type of
hearing’’ from the proposed heading for
§§ 404.936 and 416.1436. In the final
rules, that heading reads, as it does in
the current rules: ‘‘Time and place for
a hearing before an administrative law
judge.’’

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To facilitate this change in
terminology, and to address a question
that the proposed rules did not address,
we have included in §§ 404.936 and
416.1436 language defining the term
‘‘place.’’ Under these final rules,
generally, the ‘‘place’’ of the hearing is
the hearing office or other site at which
claimant is located when he or she
makes his or her appearance before the
administrative law judge, whether in
person or by video teleconferencing. If
there are multiple parties, the ‘‘place’’ of
the hearing is the site or sites at which
the parties are located when they make
their appearances, whether in person or
by VTC. That will be the ‘‘place’’ of the
hearing even though the ALJ and a
witness or witnesses may be located at
one or more other sites. Thus, in
notifying claimants of the ‘‘place’’ of
their hearings, we will notify them,
under these final rules as under our
current rules, of the places at which
they should arrive in order to make their
appearances.
The rules as proposed were unclear
regarding the function of the ALJ in
setting the time and place of the
hearing. We have clarified the rules in
this regard by changing the final rules
to use the language of the current
regulations, which specifies that the
‘‘[ALJ] sets the time and place for the
hearing.’’ Use of the existing language is
possible based on the definition of
‘‘place’’ noted above.
These final rules provide needed
headings for the multiple paragraphs of
§§ 404.936 and 416.1436. In doing that,
the final rules distinguish the ‘‘General’’
material in current paragraph (a) from
the matter included therein on where
we hold hearings, and move the matter
dealing with location into a separate,
new paragraph (b) that has the heading,
‘‘Where we hold hearings.’’ The rules
include the definition of ‘‘place’’ in that
paragraph.
The final rules also create a new
paragraph (c) under the heading,
‘‘Determining how appearance will be
made.’’ This paragraph sets forth the
rules, as discussed above, under which,
in setting the time and place for the
hearing, the ALJ determines if an
appearance or appearances are to be
made by VTC or in person. We have also
included in this paragraph a reference to
§§ 404.950 and 416.1450, which
describe procedures under which
parties to the hearing and witnesses
appear and present evidence at
hearings.
Paragraph (b) of the current
regulations is redesignated paragraph
(d) and given the heading, ‘‘Objecting to
the time or place of the hearing.’’ The
language of this paragraph follows the

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language of current paragraph (b). For
reasons previously discussed, paragraph
(d) of the final rules does not include,
as the comparable language of the
proposed rules did, language
distinguishing between the ‘‘site and/or
time’’ of a ‘‘video teleconference
hearing’’ and the ‘‘time and/or place’’ of
an ‘‘in person hearing.’’
The claimant’s right to veto his or her
appearance by VTC by objecting to it is
established in paragraph (e) of
§§ 404.936 and 416.1436 of the final
rules. The heading for this paragraph is,
‘‘Good Cause for changing the time or
place.’’ Paragraph (e) of the final rules
follows the language of paragraph (c) of
the current rules except for the
additions at the beginning of the
paragraph that describe both the right of
a claimant to object if he or she is
scheduled to appear by VTC at the place
of the hearing, and the required reaction
of the ALJ to such an objection. Those
additions make it clear that there is no
evidentiary requirement that the
claimant must satisfy in establishing
this ‘‘good cause’’ condition (such as
exists regarding the other ‘‘good cause’’
conditions described in the paragraph).
Nor is there any requirement that the
claimant state a reason for objecting to
appearing by VTC beyond his or her
wish not to do so.
The power of the claimant to veto a
VTC appearance pertains in these final
rules (with request for comment) only to
his or her own appearance, not to the
appearances of any other party or
witness. The decision made in these
final rules not to distinguish between
hearings as ‘‘in-person hearings’’ or
‘‘VTC hearings’’ makes it possible to
preserve the right of claimants to control
the manner of their own appearances
without expanding that right to include
control over the manner in which other
individuals make their appearances at
the hearing.
The heading assigned to the last
paragraph of §§ 404.936 and 416.1436 in
the final rules, paragraph (f), is, ‘‘Good
cause in other circumstances.’’ The
language of this paragraph follows the
language of paragraph (d) of the current
§§ 404.936 and 416.1436.
The final rules make a number of
changes in the sections of the
regulations that deal with the notice of
hearing before an administrative law
judge, §§ 404.938 and 416.1438. In the
current regulations, these sections
consist of a single paragraph that

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includes material that deals with the
issuance of notices, information
included in notices, and
acknowledgment of the notice of
hearing. In the proposed rules, this
material was placed in a paragraph (a)
with the heading, ‘‘General notice
information.’’ The proposed rules also
added a new paragraph (b) with the
heading, ‘‘Hearing via video
teleconferencing [,]’’ which included
material about the scheduling of a
‘‘[VTC] hearing’’ and information
included in notices of such hearings.
The proposed rules also added a new
paragraph (c) with the heading, ‘‘For a
hearing before an [ALJ,]’’ which
discussed the scheduling of an ‘‘inperson hearing.’’ In these final rules,
paragraph (a) deals with the issuance of
notices and has the heading, ‘‘Issuing
the notice.’’ Paragraph (b) deals with
information contained in notices,
including notices that schedule an
appearance or appearances by VTC, and
has the heading, ‘‘Notice information.’’
Paragraph (c) deals with
acknowledgment of the notice of
hearing and has the heading,
‘‘Acknowledging the notice of hearing.’’
The language of the final rules follows
the language of the current rules, except
as regards the notice information
pertaining to use of VTC procedures and
acknowledgment of receipt of the notice
of hearing. Paragraph (b) states that the
claimant will be told if his or her
appearance or that of any other party or
witness is scheduled to be made by VTC
rather than in person. If we have
scheduled the claimant to appear at the
hearing by VTC, the notice of hearing
will also tell the claimant that the
scheduled place for the hearing is a
teleconferencing site and explain what
it means to appear at the hearing by
VTC. The notice will also tell the
claimant how to object to appearing by
VTC and how to request a hearing at a
place for appearing in person. In
paragraph (c), the information provided
by the current rules regarding
acknowledgement of receipt of the
notice of hearing is expanded to include
a statement explaining that the notice
will ask the claimant to return a form
acknowledging receipt of the notice. It
has long been our practice to include an
acknowledgement form with the notice
of hearing. We plan to modify the
current form to include a check block
that claimants may use to object to
appearing by VTC.

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The final rules also make conforming
changes in §§ 404.950 and 416.1450. In
paragraph (a) of these sections, we
specify that claimants may appear
before the ALJ either in person or by
VTC, and that if the claimant’s
appearance is made by a designated
representative, the representative may
appear in person or by VTC. In
paragraph (e) of these sections, we
specify that witnesses may appear at a
hearing in person or by VTC.
Additional Comments
We invite your comments on the issue
of whether claimants should or should
not be empowered to veto use of VTC
to take the testimony of expert
witnesses. Comments may be submitted
by the date and to the addresses shown
above.
Electronic Version
The electronic file of this document is
available on the Internet at http://
www.access.gpo.gov/su docs/aces/
aces140.html. It is also available on the
Internet site for SSA (i.e., SSA Online)
at http://www.ssa.gov/regulations.
Regulatory Procedures
Executive Order 12866, As Amended by
Executive Order 13258
The Office of Management and Budget
(OMB) has reviewed these rules in
accordance with Executive Order 12866,
as amended by Executive Order 13258.
Regulatory Flexibility Act
We certify that these rules will not
have a significant economic impact on
a substantial number of small entities as
they affect individuals only. Therefore,
a regulatory flexibility analysis as
provided in the Regulatory Flexibility
Act, as amended, is not required.
Paperwork Reduction Act
These final rules contain reporting
requirements as shown in the table
below. Where the public reporting
burden is accounted for in Information
Collection Requests for the various
forms that the public uses to submit the
information to SSA, a 1-hour
placeholder burden is being assigned to
the specific reporting requirement(s)
contained in these rules; we are seeking
clearance of the burdens referenced in
these rules because the rules were not
considered during the clearance of the
forms.

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Federal Register / Vol. 68, No. 22 / Monday, February 3, 2003 / Rules and Regulations

Frequency of response

Average burden per response
(minutes)

1 .............................................
Once ......................................
Once ......................................
Once ......................................
1 .............................................
Once ......................................
Once ......................................
Once ......................................
................................................

1
10
1
30
1
10
1
30
........................

Annual number of
resonses

Section

404.929 ....................................................................................
404.936(d), (e) & (f) ................................................................
404.938(c) ...............................................................................
404.950(a) ...............................................................................
416.1429 .................................................................................
416.1436(d), (e) & (f) ..............................................................
416.1438(c) .............................................................................
416.1450(a) .............................................................................
Total .................................................................................

1
92,000
300,000
210,000
1
75,000
250,000
172,000
1,099,002

An Information Collection Request
has been submitted to OMB for
clearance. While these rules will be
effective 30 days from publication, these
burdens will not be effective until
cleared by OMB. We are soliciting
comments on the burden estimate; the
need for the information; its practical
utility; ways to enhance its quality,
utility and clarity; and on ways to
minimize the burden on respondents,
including the use of automated
collection techniques or other forms of
information technology. We will
publish a notice in the Federal Register
upon OMB’s approval of the
information collection requirement(s).
Comments should be submitted to the
OMB desk officer for SSA within 30
days of publication of this final rule at
the following address: Office of
Management and Budget, Attn: Desk
Officer for SSA, New Executive Office
Building, Room 10230, 725 17th St.,
NW., Washington, DC 20530.

Dated: October 25, 2002.
Jo Anne B. Barnhart,
Commissioner of Social Security.

(Catalog of Federal Domestic Assistance
Program Nos. 96.001, Social Security—
Disability Insurance; 96.002, Social
Security—Retirement Insurance; 96.003,
Social Security—Special Benefits for Persons
Aged 72 and Over; 96.004, Social Security—
Survivors Insurance; 96.006, Supplemental
Security Income.)

§ 404.929 Hearing before an administrative
law judge—general.

List of Subjects
20 CFR 404
Administrative practice and
procedure, Aged, Blind, Disability
benefits, Old-age, Survivors and
Disability Insurance, Reporting and
recordkeeping requirements, Social
Security.
20 CFR 416
Administrative practice and
procedure, Aged, Blind, Disability
benefits, Public assistance programs,
Reporting and recordkeeping
requirements, Supplemental Security
Income (SSI).

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For the reasons set out in the
preamble, subpart J of part 404 and
subpart N of part 416 of chapter III of
title 20 of the Code of Federal
Regulations are amended as set forth
below:
PART 404—FEDERAL OLD-AGE,
SURVIVORS AND DISABILITY
INSURANCE (1950– )
1. The authority citation for subpart J
of part 404 continues to read as follows:
Authority: Secs. 201(j), 204(f), 205(a), (b),
(d)–(h), and (j), 221, 225, and 702(a)(5) of the
Social Security Act (42 U.S.C. 401(j), 404(f),
405(a), (b), (d)–(h), and (j), 421, 425, and
902(a)(5)); 31 U.S.C. 3720A; sec. 5, Pub. L.
97–455, 96 Stat. 2500 (42 U.S.C. 405 note);
secs. 5, 6(c)–(e), and 15, Pub. L. 98–460, 98
Stat. 1802 (42 U.S.C. 421 note).

2. Section 404.929 is revised to read
as follows:

If you are dissatisfied with one of the
determinations or decisions listed in
§ 404.930 you may request a hearing.
The Associate Commissioner for
Hearings and Appeals, or his or her
delegate, shall appoint an
administrative law judge to conduct the
hearing. If circumstances warrant, the
Associate Commissioner, or his or her
delegate, may assign your case to
another administrative law judge. At the
hearing you may appear in person or by
video teleconferencing, submit new
evidence, examine the evidence used in
making the determination or decision
under review, and present and question
witnesses. The administrative law judge
who conducts the hearing may ask you
questions. He or she shall issue a
decision based on the hearing record. If
you waive your right to appear at the
hearing, either in person or by video
teleconferencing, the administrative law
judge will make a decision based on the
evidence that is in the file and any new

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Estimated annual burden
(hours)
1
15,333
5,000
105,000
1
12,500
4,166
86,000
228,001

evidence that may have been submitted
for consideration.
3. Section 404.936 is revised to read
as follows:
§ 404.936 Time and place for a hearing
before an administrative law judge.

(a) General. The administrative law
judge sets the time and place for the
hearing. He or she may change the time
and place, if it is necessary. After
sending you reasonable notice of the
proposed action, the administrative law
judge may adjourn or postpone the
hearing or reopen it to receive
additional evidence any time before he
or she notifies you of a hearing decision.
(b) Where we hold hearings. We hold
hearings in the 50 States, the District of
Columbia, American Samoa, Guam, the
Northern Mariana Islands, the
Commonwealth of Puerto Rico and the
Virgin Islands. The ‘‘place’’ of the
hearing is the hearing office or other
site(s) at which you and any other
parties to the hearing are located when
you make your appearance(s) before the
administrative law judge, whether in
person or by video teleconferencing.
(c) Determining how appearances will
be made. In setting the time and place
of the hearing, the administrative law
judge determines whether your
appearance or that of any other
individual who is to appear at the
hearing will be made in person or by
video teleconferencing. The
administrative law judge will direct that
the appearance of an individual be
conducted by video teleconferencing if
video teleconferencing technology is
available to conduct the appearance, use
of video teleconferencing to conduct the
appearance would be more efficient
than conducting the appearance in
person, and the administrative law
judge does not determine that there is a
circumstance in the particular case
preventing use of video teleconferencing
to conduct the appearance. Section
404.950 sets forth procedures under
which parties to the hearing and
witnesses appear and present evidence
at hearings.

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Federal Register / Vol. 68, No. 22 / Monday, February 3, 2003 / Rules and Regulations
(d) Objecting to the time or place of
the hearing. If you object to the time or
place of your hearing, you must notify
the administrative law judge at the
earliest possible opportunity before the
time set for the hearing. You must state
the reason for your objection and state
the time and place you want the hearing
to be held. If at all possible, the request
should be in writing. The administrative
law judge will change the time or place
of the hearing if you have good cause,
as determined under paragraph (e) and
(f) of this section. Section 404.938
provides procedures we will follow
when you do not respond to a notice of
hearing.
(e) Good cause for changing the time
or place. If you have been scheduled to
appear by video teleconferencing at the
place of your hearing and you notify the
ALJ as provided in paragraph (d) of this
section that you object to appearing in
that way, the administrative law judge
will find your wish not to appear by
video teleconferencing to be a good
reason for changing the time or place of
your scheduled hearing and will
reschedule your hearing for a time and
place at which you may make your
appearance before the administrative
law judge in person. The administrative
law judge will also find good cause for
changing the time or place of your
scheduled hearing, and will reschedule
your hearing, if your reason is one of the
following circumstances and is
supported by the evidence:
(1) You or your representative are
unable to attend or to travel to the
scheduled hearing because of a serious
physical or mental condition,
incapacitating injury, or death in the
family; or
(2) Severe weather conditions make it
impossible to travel to the hearing.
(f) Good cause in other circumstances.
In determining whether good cause
exists in circumstances other than those
set out in paragraph (e) of this section,
the administrative law judge will
consider your reason for requesting the
change, the facts supporting it, and the
impact of the proposed change on the
efficient administration of the hearing
process. Factors affecting the impact of
the change include, but are not limited
to, the effect on the processing of other
scheduled hearings, delays which might
occur in rescheduling your hearing, and
whether any prior changes were granted
to you. Examples of such other
circumstances, which you might give for
requesting a change in the time or place
of the hearing, include, but are not
limited to, the following:
(1) You have attempted to obtain a
representative but need additional time;

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(2) Your representative was appointed
within 30 days of the scheduled hearing
and needs additional time to prepare for
the hearing;
(3) Your representative has a prior
commitment to be in court or at another
administrative hearing on the date
scheduled for the hearing;
(4) A witness who will testify to facts
material to your case would be
unavailable to attend the scheduled
hearing and the evidence cannot be
otherwise obtained;
(5) Transportation is not readily
available for you to travel to the hearing;
(6) You live closer to another hearing
site; or
(7) You are unrepresented, and you
are unable to respond to the notice of
hearing because of any physical, mental,
educational, or linguistic limitations
(including any lack of facility with the
English language) which you may have.
4. Section 404.938 is revised to read
as follows:
§ 404.938 Notice of a hearing before an
administrative law judge.

(a) Issuing the notice. After the
administrative law judge sets 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. The notice
will be mailed or served at least 20 days
before the hearing.
(b) Notice information. The notice of
hearing will contain a statement of the
specific issues to be decided and tell
you that you may designate a person to
represent you during the proceedings.
The notice will also contain an
explanation of the procedures for
requesting a change in the time or place
of your hearing, a reminder that if you
fail to appear at your scheduled hearing
without good cause the ALJ may dismiss
your hearing request, and other
information about the scheduling and
conduct of your hearing. You will also
be told if your appearance or that of any
other party or witness is scheduled to be
made by video teleconferencing rather
than in person. 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 teleconferencing site
and explain what it means to appear at
your hearing by video teleconferencing.
The notice will also tell you how you
may let us know if you do not want to
appear in this way and want, instead, to
have your hearing at a time and place
where you may appear in person before
the ALJ.

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5219

(c) Acknowledging the notice of
hearing. The notice of hearing will ask
you to return a form to let us know that
you received the notice. If you or your
representative do not acknowledge
receipt of the notice of hearing, we will
attempt to contact you for an
explanation. If you tell us that you did
not receive the notice of hearing, an
amended notice will be sent to you by
certified mail. See § 404.936 for the
procedures we will follow in deciding
whether the time or place of your
scheduled hearing will be changed if
you do not respond to the notice of
hearing.
5. In § 404.950, paragraphs (a) and (e)
are revised to read as follows:
§ 404.950 Presenting evidence at a hearing
before an administrative law judge.

(a) The right to appear and present
evidence. Any party to a hearing has a
right to appear before the administrative
law judge, either in person or, when the
conditions in § 404.936(c) exist, by
video teleconferencing, to present
evidence and to state his or her position.
A party may also make his or her
appearance by means of a designated
representative, who may make the
appearance in person or by video
teleconferencing.
*
*
*
*
*
(e) Witnesses at a hearing. Witnesses
may appear at a hearing in person or,
when the conditions in § 404.936(c)
exist, by video teleconferencing. They
shall testify under oath or affirmation,
unless the administrative law judge
finds an important reason to excuse
them from taking an oath or affirmation.
The administrative law judge may ask
the witnesses any questions material to
the issues and shall allow the parties or
their designated representatives to do
so.
*
*
*
*
*
PART 416—SUPPLEMENTAL
SECURITY INCOME FOR THE AGED,
BLIND, AND DISABLED
6. The authority citation for subpart N
of part 416 continues to read as follows:
Authority: Secs. 702(a)(5), 1631, and 1633
of the Social Security Act (42 U.S.C.
902(a)(5), 1383, and 1383b); 31 U.S.C. 3720A.

7. Section 416.1429 is revised to read
as follows:
§ 416.1429 Hearing before an
administrative law judge—general.

If you are dissatisfied with one of the
determinations or decisions listed in
§ 416.1430 you may request a hearing.
The Associate Commissioner for
Hearings and Appeals, or his or her
delegate, shall appoint an

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Federal Register / Vol. 68, No. 22 / Monday, February 3, 2003 / Rules and Regulations

administrative law judge to conduct the
hearing. If circumstances warrant, the
Associate Commissioner, or his or her
delegate, may assign your case to
another administrative law judge. At the
hearing you may appear in person or by
video teleconferencing, submit new
evidence, examine the evidence used in
making the determination or decision
under review, and present and question
witnesses. The administrative law judge
who conducts the hearing may ask you
questions. He or she shall issue a
decision based on the hearing record. If
you waive your right to appear at the
hearing, either in person or by video
teleconferencing, the administrative law
judge will make a decision based on the
evidence that is in the file and any new
evidence that may have been submitted
for consideration.
8. Section 416.1436 is revised to read
as follows:
§ 416.1436 Time and place for a hearing
before an administrative law judge.

(a) General. The administrative law
judge sets the time and place for the
hearing. He or she may change the time
and place, if it is necessary. After
sending you reasonable notice of the
proposed action, the administrative law
judge may adjourn or postpone the
hearing or reopen it to receive
additional evidence any time before he
or she notifies you of a hearing decision.
(b) Where we hold hearings. We hold
hearings in the 50 States, the District of
Columbia, and the Northern Mariana
Islands. The ‘‘place’’ of the hearing is
the hearing office or other site(s) at
which you and any other parties to the
hearing are located when you make your
appearance(s) before the administrative
law judge, whether in person or by
video teleconferencing.
(c) Determining how appearances will
be made. In setting the time and place
of the hearing, the administrative law
judge determines whether your
appearance or that of any other
individual who is to appear at the
hearing will be made in person or by
video teleconferencing. The
administrative law judge will direct that
the appearance of an individual be
conducted by video teleconferencing if
video teleconferencing technology is
available to conduct the appearance, use
of video teleconferencing to conduct the
appearance would be more efficient
than conducting the appearance in
person, and the administrative law
judge does not determine that there is a
circumstance in the particular case
preventing use of video teleconferencing
to conduct the appearance. Section
416.1450 sets forth procedures under
which parties to the hearing and

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witnesses appear and present evidence
at hearings.
(d) Objecting to the time or place of
the hearing. If you object to the time or
place of your hearing, you must notify
the administrative law judge at the
earliest possible opportunity before the
time set for the hearing. You must state
the reason for your objection and state
the time and place you want the hearing
to be held. If at all possible, the request
should be in writing. The administrative
law judge will change the time or place
of the hearing if you have good cause,
as determined under paragraph (e) and
(f) of this section. Section 416.1438
provides procedures we will follow
when you do not respond to a notice of
hearing.
(e) Good cause for changing the time
or place. If you have been scheduled to
appear by video teleconferencing at the
place of your hearing and you notify the
ALJ as provided in paragraph (d) of this
section that you object to appearing in
that way, the administrative law judge
will find your wish not to appear by
video teleconferencing to be a good
reason for changing the time or place of
your scheduled hearing and will
reschedule your hearing for a time and
place at which you may make your
appearance before the administrative
law judge in person. The administrative
law judge will also find good cause for
changing the time or place of your
scheduled hearing, and will reschedule
your hearing, if your reason is one of the
following circumstances and is
supported by the evidence:
(1) You or your representative are
unable to attend or to travel to the
scheduled hearing because of a serious
physical or mental condition,
incapacitating injury, or death in the
family; or
(2) Severe weather conditions make it
impossible to travel to the hearing.
(f) Good cause in other circumstances.
In determining whether good cause
exists in circumstances other than those
set out in paragraph (e) of this section,
the administrative law judge will
consider your reason for requesting the
change, the facts supporting it, and the
impact of the proposed change on the
efficient administration of the hearing
process. Factors affecting the impact of
the change include, but are not limited
to, the effect on the processing of other
scheduled hearings, delays which might
occur in rescheduling your hearing, and
whether any prior changes were granted
to you. Examples of such other
circumstances, which you might give for
requesting a change in the time or place
of the hearing, include, but are not
limited to, the following:

PO 00000

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(1) You have attempted to obtain a
representative but need additional time;
(2) Your representative was appointed
within 30 days of the scheduled hearing
and needs additional time to prepare for
the hearing;
(3) Your representative has a prior
commitment to be in court or at another
administrative hearing on the date
scheduled for the hearing;
(4) A witness who will testify to facts
material to your case would be
unavailable to attend the scheduled
hearing and the evidence cannot be
otherwise obtained;
(5) Transportation is not readily
available for you to travel to the hearing;
(6) You live closer to another hearing
site; or
(7) You are unrepresented, and you
are unable to respond to the notice of
hearing because of any physical, mental,
educational, or linguistic limitations
(including any lack of facility with the
English language) which you may have.
9. Section 416.1438 is revised to read:
§ 416.1438 Notice of a hearing before an
administrative law judge.

(a) Issuing the notice. After the
administrative law judge sets 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. The notice
will be mailed or served at least 20 days
before the hearing.
(b) Notice information. The notice of
hearing will contain a statement of the
specific issues to be decided and tell
you that you may designate a person to
represent you during the proceedings.
The notice will also contain an
explanation of the procedures for
requesting a change in the time or place
of your hearing, a reminder that if you
fail to appear at your scheduled hearing
without good cause the ALJ may dismiss
your hearing request, and other
information about the scheduling and
conduct of your hearing. You will also
be told if your appearance or that of any
other party or witness is scheduled to be
made by video teleconferencing rather
than in person. 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 teleconferencing site
and explain what it means to appear at
your hearing by video teleconferencing.
The notice will also tell you how you
may let us know if you do not want to
appear in this way and want, instead, to
have your hearing at a time and place
where you may appear in person before
the ALJ.

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Federal Register / Vol. 68, No. 22 / Monday, February 3, 2003 / Rules and Regulations
(c) Acknowledging the notice of
hearing. The notice of hearing will ask
you to return a form to let us know that
you received the notice. If you or your
representative do not acknowledge
receipt of the notice of hearing, we will
attempt to contact you for an
explanation. If you tell us that you did
not receive the notice of hearing, an
amended notice will be sent to you by
certified mail. See § 416.1436 for the
procedures we will follow in deciding
whether the time or place of your
scheduled hearing will be changed if
you do not respond to the notice of
hearing.
10. In § 416.1450, paragraphs (a) and
(e) are revised to read as follows:
§ 416.1450 Presenting evidence at a
hearing before an administrative law judge.

(a) The right to appear and present
evidence. Any party to a hearing has a
right to appear before the administrative
law judge, either in person or, when the
conditions in § 416.1436(c) exist, by
video teleconferencing, to present
evidence and to state his or her position.
A party may also make his or her
appearance by means of a designated
representative, who may make the
appearance in person or by video
teleconferencing.
*
*
*
*
*
(e) Witnesses at a hearing. Witnesses
may appear at a hearing in person or,
when the conditions in § 416.1436(c)
exist, video teleconferencing. They shall
testify under oath or affirmation, unless
the administrative law judge finds an
important reason to excuse them from
taking an oath or affirmation. The
administrative law judge may ask the
witnesses any questions material to the
issues and shall allow the parties or
their designated representatives to do
so.
*
*
*
*
*
[FR Doc. 03–2402 Filed 1–31–03; 8:45 am]
BILLING CODE 4191–02–P

ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[AL–200311; FRL–7444–7]

Approval and Promulgation of Air
Quality Implementation Plans;
Alabama Update to Materials
Incorporated by Reference
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule; notice of
administrative change.

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SUMMARY: EPA is updating the materials
submitted by Alabama that are
incorporated by reference (IBR) into the
State implementation plan (SIP). The
regulations affected by this update have
been previously submitted by the State
agency and approved by EPA. This
update affects the SIP materials that are
available for public inspection at the
Office of the Federal Register (OFR),
Office of Air and Radiation Docket and
Information Center, and the Regional
Office.
EFFECTIVE DATE: This action is effective
February 3, 2003.
ADDRESSES: SIP materials which are
incorporated by reference into 40 CFR
part 52 are available for inspection at
the following locations: Environmental
Protection Agency, Region 4, 61 Forsyth
Street, SW., Atlanta, GA 30303; Office of
Air and Radiation Docket and
Information Center, Room B–108, 1301
Constitution Avenue, (Mail Code 6102T)
NW., Washington, DC 20460, and Office
of the Federal Register, 800 North
Capitol Street, NW., Suite 700,
Washington, DC.
FOR FURTHER INFORMATION CONTACT: Mr.
Sean Lakeman at the above Region 4
address or at (404) 562–9043.
SUPPLEMENTARY INFORMATION: The SIP is
a living document which the State can
revise as necessary to address the
unique air pollution problems in the
state. Therefore, EPA from time to time
must take action on SIP revisions
containing new and/or revised
regulations as being part of the SIP. On
May 22, 1997 (62 FR 27968), EPA
revised the procedures for incorporating
by reference Federally-approved SIPs, as
a result of consultations between EPA
and OFR. The description of the revised
SIP document, IBR procedures and
‘‘Identification of plan’’ format are
discussed in further detail in the May
22, 1997, Federal Register document.
On December 22, 1998, EPA published
a document in the Federal Register (63
FR 70669) beginning the new IBR
procedure for Alabama. In this
document EPA is doing the update to
the material being IBRed.
EPA has determined that today’s rule
falls under the ‘‘good cause’’ exemption
in section 553(b)(3)(B) of the
Administrative Procedures Act (APA)
which, upon finding ‘‘good cause,’’
authorizes agencies to dispense with
public participation and section
553(d)(3) which allows an agency to
make a rule effective immediately
(thereby avoiding the 30-day delayed
effective date otherwise provided for in
the APA). Today’s rule simply codifies
provisions which are already in effect as
a matter of law in Federal and approved

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5221

State programs. Under section 553 of the
APA, an agency may find good cause
where procedures are ‘‘impractical,
unnecessary, or contrary to the public
interest.’’ Public comment is
‘‘unnecessary’’ and ‘‘contrary to the
public interest’’ since the codification
only reflects existing law. Immediate
notice in the CFR benefits the public by
updating citations.
Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR
51735, October 4, 1993), this action is
not a ‘‘significant regulatory action’’ and
therefore is not subject to review by the
Office of Management and Budget. For
this reason, this action is also not
subject to Executive Order 13211,
‘‘Actions Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355, May
22, 2001). This action merely approves
state law as meeting Federal
requirements and imposes no additional
requirements beyond those imposed by
state law. Accordingly, the
Administrator certifies that this rule
will not have a significant economic
impact on a substantial number of small
entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). Because this
rule approves pre-existing requirements
under state law and does not impose
any additional enforceable duty beyond
that required by state law, it does not
contain any unfunded mandate or
significantly or uniquely affect small
governments, as described in the
Unfunded Mandates Reform Act of 1995
(Pub. L. 104–4).
This rule also does not have tribal
implications because it will not have a
substantial direct effect on one or more
Indian tribes, on the relationship
between the Federal government and
Indian tribes, or on the distribution of
power and responsibilities between the
Federal government and Indian tribes,
as specified by Executive Order 13175
(65 FR 67249, November 9, 2000). This
action also does not have federalism
implications because it does not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132 (64 FR 43255,
August 10, 1999). This action merely
approves a state rule implementing a
Federal standard, and does not alter the
relationship or the distribution of power
and responsibilities established in the
Clean Air Act. This rule also is not
subject to Executive Order 13045
‘‘Protection of Children from
Environmental Health Risks and Safety

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03FER1