VTC Final Rule 12-11-03

Federal Register / Vol. 68, No. 238 / Thursday, December 11, 2003 / Rules and Regulations
(ii) Subsequent Violation/Subsections
(a)(1)–(3), from $60,000 to $60,000
(iii) Violation/Subsections (a)(4)–(5),
from $6,000 to $5,500.
(iv) Subsequent Violation/Subsections
(a)(4)–(5), from $6,000 to $5,500.
(v) Violation/Subsection (a)(6), from
$120,000 to $120,000.
(8) 16 U.S.C. 973f(a), South Pacific
Tuna Act of 1988, from $300,000 to
$300,000.
(9) 16 U.S.C. 1174(b), Fur Seal Act
Amendments of 1983, from $11,000 to
$11,000.
(10) 16 U.S.C. 1375(a)(1), Marine
Mammal Protection Act of 1972 (1981),
from $12,000 to $11,000.
(11) 16 U.S.C. 1385(e), Dolphin
Protection Consumer Information Act
(1990), from $110,000 to $110,000.
(12) 16 U.S.C. 1437(d)(1), National
Marine Sanctuaries Act (1992), from
$119,000 to $120,000.
(13) 16 U.S.C. 1540(a)(1), Endangered
Species Act of 1973;
(i) Knowing Violations of Section
1538 (1988), from $30,000 to $27,500.
(ii) Other Knowing Violations (1988),
from $14,000 to $13,200.
(iii) Otherwise Violations (1978), from
$600 to $550.
(14) 16 U.S.C. 1858(a), MagnusonStevens Fishery Conservation and
Management Act (1990), from $120,000
to $120,000.
(15) 16 U.S.C. 2437(a)(1), Antarctic
Marine Living Resources Convention
Act of 1984;
(i) Knowing Violation, from $12,000
to $11,000.
(ii) Violation, from $6,000 to $5,500.
(16) 16 U.S.C. 2465(a), Antarctic
Protection Act of 1990;
(i) Knowing Violation, from $11,000
to $11,000.
(ii) Violation, from $5,500 to $5,500.
(17) 16 U.S.C. 3373(a), Lacey Act
Amendments of 1981
(i) Sale and Purchase Violation, from
$12,000 to $11,000.
(ii) Marking Violation, from $300 to
$275.
(iii) False Labeling Violation, from
$12,000 to $11,000.
(iv) Other than Marking Violation,
from $12,000 to $11,000.
(18) 16 U.S.C. 3606(b)(1), Atlantic
Salmon Convention Act of 1982 (1990),
from $120,000 to $120,000.
(19) 16 U.S.C. 3637(b), Pacific Salmon
Treaty Act of 1985 (1990), from
$120,000 to $120,000.
(20) 16 U.S.C. 4016(b)(1)(B), Fish and
Seafood Promotion Act of 1986, from
$5,500 to $5,500.
(21) 16 U.S.C. 5010(a)(1), North
Pacific Anadromous Stocks Act of 1992,
from $110,000 to $110,000.
(22) 16 U.S.C. 5103(b)(2), Atlantic
Coastal Fisheries Cooperative

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Management Act (1993), from $110,000
to $120,000.
(23) 16 U.S.C. 5154(c)(1), Atlantic
Striped Bass Conservation Act (1990),
from $120,000 to $120,000.
(24) 16 U.S.C. 5507(a)(1), High Seas
Fishing Compliance Act of 1995, from
$109,000 to $110,000.
(25) 16 U.S.C. 5606(b), Northwest
Atlantic Fisheries Convention Act of
1995, from $109,000 to $120,000.
(26) 22 U.S.C. 1978(e), Fishermen’s
Protective Act of 1967 (1971);
(i) Violation, from $11,000 to $11,000.
(ii) Subsequent Violation, from
$27,500 to $27,500.
(27) 30 U.S.C. 1462(a), Deep Seabed
Hard Mineral Resources Act (1980),
from $30,000 to $27,500.
(28) 42 U.S.C. 9152(c)(1), Ocean
Thermal Energy Conversion Act of 1980,
from $30,000 to $27,500.
■ 3. Section 6.5 is revised to read as
follows:
§ 6.5 Effective date of adjustments.
The adjustments made by Sec. 6.4 of
this part, of the penalties there
specified, are effective on December 11,
2003, and said penalties, as thus
adjusted by the adjustments made by
Sec. 6.4 of this part, shall apply only to
violations occurring after December 11,
2003, and before the effective date of
any future inflation adjustment thereto
made subsequent to December 11, 2003
as provided in Sec. 6.6 of this part.
[FR Doc. 03–30621 Filed 12–10–03; 8:45 am]
BILLING CODE 3510–17–P

SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
[Regulation Nos. 4 and 16]
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 rule.

SUMMARY: We are adopting without
change the final rules that were
published in the Federal Register on
February 3, 2003, at 68 FR 5210,
authorizing us to conduct hearings
before administrative law judges (ALJs)
using video teleconferencing (VTC). The
revised rules authorized us to conduct
hearings before ALJs at which a party or

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parties to the hearing and/or a witness
or witnesses may appear before the ALJ
by VTC. The revised rules also provided
that if we schedule you to appear at
your hearing by VTC, rather than in
person, and you object to use of the VTC
procedure, we will reschedule your
hearing as one at which you may appear
in person before the ALJ. Under the
revised rules, the ALJ will also consider
any objection you may have to the
appearance of a witness by VTC. The
purpose of the rules is to 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.
DATES: These rules were effective March
5, 2003.
FOR FURTHER INFORMATION CONTACT:
Robert J. Augustine, Social Insurance
Specialist, Office of Regulations, Social
Security Administration, 100 Altmeyer
Building, 6401 Security Boulevard,
Baltimore, MD 21235–6401, (410) 965–
0020 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.socialsecurity.gov.
Electronic Version
The electronic file of this document is
available on the Internet at http://
www.gpoaccess.gov/fr/index.html. It is
also available on the Internet site for
SSA (i.e., Social Security Online) at
http://policy.ssa.gov/pnpublic.nsf/
LawRegs.
SUPPLEMENTARY INFORMATION:
Background
On January 5, 2001, at 66 FR 1059, we
published a Notice of Proposed
Rulemaking (NPRM) in which we
proposed to authorize our use of VTC in
conducting hearings before ALJs. One
provision in the proposed rules would
have given claimants the right to veto
use of VTC to take both their own
testimony and the testimony of
vocational experts (VEs) and medical
experts (MEs). On February 3, 2003,
after considering the public comments
received on the NPRM, we published
the final rules at 68 FR 5210 authorizing
our use of VTC effective March 5, 2003.
The final rules made a significant
change from the proposed rules by
giving claimants the right to veto the use
of VTC only for the purpose of taking
their own testimony. Accordingly, in
publishing the final rules, we requested
public comment on the issue of whether

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claimants should or should not be
empowered to veto use of VTC to take
the testimony of expert witnesses.1
Our Reasons for Proposing Rules
Authorizing Use of VTC 2
We receive more than 500,000
requests for hearings before ALJs each
year. To accommodate the hearing
requests of individuals who do not live
near a hearing office, we hold
approximately 40% of hearings at
remote sites, which are generally at least
75 miles from the hearing office.
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.
We proposed rules to authorize use of
VTC in conducting hearings based on
testing conducted in the State of Iowa
beginning in 1996 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 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
1 The final rules published on February 3, 2003,
were designated as ‘‘[f]inal rules with request for
comment.’’ This current preamble deals with three
sets of rules: (1) The proposed rules published in
the NPRM of January 5, 2001; (2) the final rules
were requested for comment published February 3,
3002, and (3) these current final rules that adopt the
final rules with request for comment without
change.
2 We are summarizing our reasons for proposing
rules to authorize use of VTC. For a more detailed
review of the history of the development of these
rules, see the preamble to the NPRM of January 5,
2001 (66 FR 1059–1062).

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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 would be 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 did
in our testing of VTC, would improve
hearing office efficiency and would
permit us to provide faster access to a
hearing for some individuals.
Final Rules With Request for Comment
In the final rules with request for
comment published February 3, 2003,
we revised several sections of our
regulations. We revised §§ 404.929 and
416.1429 to state that you may appear
at your hearing in person or by VTC. We
revised §§ 404.936 and 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
revised §§ 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 revised §§ 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.
The final rules with request for
comment included a number of changes
we made in response to the public
comments we received on the NPRM,
including changes to §§ 404.936 and
416.1436 to clearly reflect the authority
of the ALJ to determine how hearings
are conducted with respect to the use of
VTC to conduct appearances.3 The final
3 For a detailed review of the comments on the
NPRM, and of all the changes that the final rules
with request for comment made in the proposed
rules, see the preamble to the final rules with

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rules with request for comment also set
forth, in §§ 404.936(c) and 416.1436(c),
specific policies that direct how that
authority is to be exercised. Those
sections specify that—
‘‘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.’’

As previously noted, the final rules
with request for comment also made
changes in the rules proposed in the
NPRM relative to the issue of whether
claimants should have veto authority
over the use of VTC for the appearances
of VEs and MEs. We made these changes
in response to the comments of ALJs
who commented on the NPRM, all but
one of whom strongly opposed the
proposal to allow claimants to veto the
use of VTC to conduct the appearances
of expert witnesses. (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 commenters opposed the
proposal to allow claimants to veto VTC
appearances by expert witnesses for
several reasons. One was 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. The commenters also
expressed concern 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
request for comment of February 3, 2003, 68 FR
5212–5217.

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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 VTC appearances by experts 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 inperson appearances, at odd times in
their workdays, at four sites.
The ALJs who participated in the
Iowa test also 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 use of 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.
In explaining our response to these
comments (i.e., the decision we made in
the final rules with request for comment
to deny claimants veto authority over
whether hearings will be conducted
with a witness or witnesses appearing
by VTC), we said—
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

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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 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–2–5–30, I–2–5–
42, and I–2–5–57, at http://www.ssa.gov/OPHome/hallex/hallex.html. 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 have
discretion to determine that the 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 in-person

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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.4

Use of VTC
At present, 15 of our 138 hearing
offices and 1 regional office use VTC to
conduct hearings. Appearances by VTC
are occurring from 12 different remote
sites and 2 state networks.
We plan to gradually roll out use of
VTC nationally. We will begin to use
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.
• 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.)
Initially, 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.
4 68

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• The audio/video transmission is
secure and the individual’s privacy is
protected.
We will follow the same procedures
for making audio recordings of hearings
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. If there is 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.
Although use of VTC to conduct
hearings has the potential to improve
service, we will not require any
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 timely 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 date the
request for hearing was filed. 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 §§ 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:

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• 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;
• Understand that a witness is
appearing by VTC, when appropriate;
• 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, including
the appearances of witnesses who may
appear by VTC notwithstanding an
objection by the claimant to use of VTC
for the appearance.
Public Comments
The final rules with request for
comment that were published on
February 3, 2003, provided the public
with a 60-day comment period. We
received a total of ten comments.
Because some of the comments were
detailed, we have condensed,
summarized, or paraphrased them
below. However, we have tried to
summarize the commenters’ views
accurately and to respond to all of the
significant issues raised by the
commenters that were within the scope
of this rulemaking action.
We have not limited ourselves to
responding only to those comments that
addressed the specific issue on which
we solicited comment (i.e., whether
claimants should have veto authority
over VTC appearances by witnesses as
well as veto authority over their own
appearances by VTC). Many of the other
comments received addressed issues
previously addressed or touched on in
the comments received in response to
the NPRM. However, since the
additional comments generally offered
some different perspective on the issues,
we are responding to those comments as
well.
None of the comments we received
opposed the change to deny claimants
the right to veto use of VTC to conduct
the appearance of a witness. However,

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a number of the comments suggested
that we expand our rules to provide
more specific guidance regarding the
consideration of objections to the use of
VTC for taking expert testimony and the
factors that could interfere with use of
VTC to conduct the appearance of a
witness.
Comment: The Railroad Retirement
Board (RRB), which had noted in
commenting on the proposed rules that
it would be interested in making use of
SSA’s VTC facilities on a fee basis,
wrote to again state its interest in
exploring the possibility of the RRB
using our VTC facilities.
Response: We are exploring the
possibilities of sharing VTC facilities
with the RRB and other agencies.
Comment: The Association of
Administrative Law Judges (AALJ)
wrote to restate its strong support for
our decision to have the ALJ decide
whether to have expert witnesses appear
by VTC and to deny claimants the right
to veto use of VTC for that purpose.
Response: We considered the AALJ’s
comments in deciding to change the
proposed rules in this respect. The
AALJ’s restatement of its prior
comments supports adoption of the
rules published February 3, 2003,
without change.
Comment: Noting that we cited the
difficulty of finding MEs in remote sites
in sparsely populated areas as one
justification for using VTC, one
commenter suggested that another
possible solution would be to increase
ME compensation.
Response: We believe that we can
increase our ability to secure ME (and
VE) services in remote areas by using
VTC, and that it will be productive to
use VTC for this purpose even if we also
identify other ways to ameliorate the
problems we have experienced in
securing expert testimony in remote
areas. VTC use can increase the
incentives for an expert witness to
appear in remote-site hearings by
reducing or eliminating the adverse
effect on the expert’s professional
schedule that can occur if the expert is
required to travel to a remote site. Use
of VTC can also increase the incentive
of experts to appear in Social Security
hearings by facilitating the scheduling
of multiple appearances for the expert
within a limited period.
Comment: In the mistaken belief that
we plan to videotape hearings in which
appearances are made by VTC, a
commenter asked a number of questions
about access to and the costs of the
videotapes that would result under such
a procedure, and about whether the
Appeals Council might use these
videotapes and the visual clues they

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Federal Register / Vol. 68, No. 238 / Thursday, December 11, 2003 / Rules and Regulations
provide regarding credibility to make
credibility findings over and beyond
those of the ALJ.
Response: As we stated above, and in
the preambles to the NPRM and the
final rules with request for comment, we
have no plans to videotape hearings in
which a party or witness appears by
VTC. We will make audio recordings of
these hearings using the same
procedures we use in hearings in which
all of the participants appear in person.
The role of the Appeals Council in
considering cases should not be affected
by whether VTC was used in conducting
an appearance or appearances at the
hearing.
Comment: This same commenter
asked what savings in real days we
project to occur as a result of the use of
VTC.
Response: As we noted above and in
the prior preambles concerning these
rules, the Iowa test results showed that
processing time for hearings using VTC
procedures was substantially less than
for hearings conducted in person at
remote sites. The processing time
savings achieved by different hearing
offices will vary depending on multiple
factors, including the rate at which the
office uses VTC in the hearings it
conducts. Nationally, we expect that the
overall effect of using VTC in reducing
processing times will increase as we
gradually rollout VTC and develop more
effective VTC networks.
Comment: A commenter expressed
the opinion that VTC is a viable
alternative for hearings, provided it
remains a choice and not a requirement,
and that use of VTC should speed up
the hearing process and save money.
Response: We agree with these views.
We understand the aspect of this
comment that deals with the
maintenance of ‘‘choice’’ to be
concerned with the claimant’s retention
of choice regarding the mode of his or
her appearance, rather than the specific
issue of whether the claimant should
have veto authority over VTC
appearances of expert witness. We
discuss that issue in response to other
comments.
Comment: Two commenters
questioned whether claimants would
find appearing by VTC satisfactory. One
commenter thought that the ALJ hearing
was already stressful enough for
claimants and that adding a camera to
the process will only make matters
worse. Another thought that the camera
‘‘may not cut it’’ and that represented
claimants will want to look the ALJ in
the eye and tell their story in person.
Response: Our testing of VTC does not
support the conclusion that claimants
will find appearing by VTC to be

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intimidating or unsatisfactory for the
purpose of projecting their own
credibility. As previously discussed
(above and in the prior preambles for
these rules), in our testing of VTC in
Iowa a large percentage of claimants
rated hearings using VTC procedures as
‘‘convenient’’ or ‘‘very convenient’’ and
overall service as ‘‘good’’ or ‘‘very
good.’’ We also note that in commenting
on the NPRM, a national organization of
claimant representatives reported that
one of its members who had represented
several hundred claimants in the Iowa
test now preferred VTC to in-person
hearings because, among other benefits,
VTC has a calming effect on his clients.
One of the reasons we retained the
right of claimants to opt out of
appearing personally by VTC in the
final rules with request for comment
was to promote claimant satisfaction
with the hearing experience. As we
noted in the preamble to those rules,
claimants may have strong opinions
about whether they can best project
their own credibility by appearing in
person or by VTC. Preserving an option
for claimants to appear in person should
increase their comfort level in appearing
by VTC and help to ensure that they
perceive the hearing process as fair.
Comment: Two commenters
expressed concerns about the
effectiveness of VTC proceedings for the
purposes of inquiring fully into the
facts. One thought that a ‘‘flickering and
disembodied’’ view is no substitute for
in-person observation at the hearing and
that use of VTC will deprive hearing
proceedings of the solemnity that
encourages truth telling. Another
commenter thought that the
decisionmaker would lose the personal
contact with the claimant that the
commenter believes is needed to assess
credibility.
Response: Under the final rules with
request for comment, the ALJ has
discretion to require in-person
appearances, by the claimant or
witnesses, in any case in which the ALJ
determines that the immediacy of an inperson appearance is needed to inquire
fully into the facts. Thus, the rules
provide a mechanism to prevent use of
VTC where an in-person appearance
would be more appropriate.
We believe that any problems in
assessing credibility in VTC proceedings
would generally be associated with
possible instances of inadequate VTC
transmission. That was the case, for
example, in the incident reported in a
comment on the NPRM in which a
claimant representative was dissatisfied
with a VTC experience because the
quality of the VTC transmission was not
sufficient to allow the ALJ to perceive

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69007

the claimant’s sweating and shortness of
breath. We believe we can generally
avoid problems of this type by assuring
that our VTC facilities are of high
quality. As we noted above and in the
prior preambles for these rules, we plan
to implement use of VTC in the
servicing areas of hearing offices after
the Associate Commissioner for
Hearings and Appeals determines that
appearances at hearings conducted in
those areas can be conducted more
efficiently by VTC than in person.
Where problems do occur, we believe
that it will frequently be possible to
reach satisfactory solutions on an ad hoc
basis, such as happened in the above
noted example when the ALJ stipulated
to the claimant’s sweating and shortness
of breath based on the representative’s
statement describing these conditions.
Where technical problems occur and
cannot be overcome, the hearing will be
rescheduled, as happens when a
problem in the audio recording
equipment prevents the recording of a
hearing.
Comment: One commenter opposed
use of VTC on the basis that its use is
complicated by technical issues,
including problems involved in making
the claim file available for review by the
claimant and the additional costs
associated with having dual staffs at two
sites.
Response: The technical problems of
concern to this commenter involve
matters that we assessed in deciding
that using VTC to conduct hearings is an
efficient service delivery option. Our
judgment in this regard included
consideration of the need to establish
VTC facilities and to have hearing
monitors available at VTC sites to assist
in the hearing proceedings. The
technical issues we have considered
also include the problems involved in
ensuring that claimants who appear by
VTC will have access to the record that
is sufficient and equal to that of
claimants who appear in person. We
have addressed these problems by
establishing procedures to provide the
claimant and the representative a copy
of the evidence of record or an
opportunity to review the file at their
local Social Security FO before the
hearing is conducted, and/or through
use of document cameras to display
documents on the day of the hearing.5
5 We address these procedures, together with
changes we are making in our standardized notices
of hearing to advise claimants concerning the
procedures, in HALLEX guidance that we have
issued to implement our use of VTC procedures
(HALLEX TI I–5–1–16). (See http://www.ssa.gov/
OP-Home/hallex/I–05/I–5–1–16.html, TI 1–5–1–16
III.E, and Attachment 3.)

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Federal Register / Vol. 68, No. 238 / Thursday, December 11, 2003 / Rules and Regulations

Comment: One commenter proposed
that we should limit the use of VTC to
cases in which the ALJ determines that
there is ‘‘good cause’’ to use VTC
procedures because the claimant is
prevented from traveling by illness or
other good reasons. Another commenter
expressed the view that use of VTC
should be limited to situations in which
its use is necessary to allow the
appearance of a witnesses who would
be unable to appear except by VTC.
Response: Using VTC would not be
efficient or cost effective if we limited
its use to the relatively small number of
cases in which the claimant is unable to
travel or there is another factor requiring
the use of VTC. The advantages in
efficiency and costs savings involved in
using VTC accrue where a hearing office
is able to use VTC in many of its cases.
We see no basis for making the use of
VTC contingent upon the ALJ finding
‘‘good cause’’ to use it in a particular
case. As we stated in the preamble to
the final rules with request for
comment, we believe that the hearing
proceedings we conduct using VTC will
be fundamentally fair and fully
protective of the claimant’s right to
procedural due process. Based on that
belief, we further believe that the best
overall policy is to schedule use of VTC
to conduct hearings in all instances in
which VTC technology is available and
would be an efficient means for
conducting the appearance(s) of the
claimant and/or a witness or witnesses,6
and the ALJ does not determine that
there is a circumstance in the particular
case preventing use of VTC to conduct
an appearance.
Comment: One commenter expressed
concern about unspecified provisions of
the final rules with request for comment
that ‘‘prohibit a right to object to the
appearance of an expert witness by
VTC.’’
Response: The final rules with request
for comment included no provision
prohibiting claimants or their
representatives from stating objections
on any matter, including the appearance
of a witness by VTC. As we noted in the
preamble to those rules, claimants may
state objections to a witness appearing
by VTC, just as they may state
objections to any aspect of the hearing.7
6 Concerning the assessment of the efficiency of
using VTC, see our response below to the comment
recommending that the ALJ consider certain factors
when scheduling VTC appearances.
7 HALLEX TI I–5–1–16 has changed our
standardized notices of hearing to notify claimants
when a witness will appear by VTC and to advise
claimants explicitly that they may object not only
with respect to issues, but also ‘‘to any other aspect
of the scheduled hearing.’’ (TI I–5–1–16,
Attachment 3.)

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Comment: Noting that it generally
supports the use of VTC provided the
right to a full and fair hearing is
adequately protected and the technical
quality of the hearings is assured, an
organization of individuals who
represent claimants commented that we
should provide guidance for
circumstances that warrant having a
witness appear in person. For that
purpose, the commenter suggested that
we should include in our rules language
from the preamble to the final rules with
request for comment in which we
specified that a claimant’s objection to
a witness appearing by VTC will not
prevent the use of VTC ‘‘unless the ALJ
determines that the claimant’s objection
is based on a circumstance that warrants
having the witness appear in person.’’ 8
Response: We are not adopting this
comment because the provisions of the
final rules with request for comment
encompass the point made in the
preamble language cited in the
comment. Sections 404.936(c) and
416.1436(c) of our rules require us to
schedule a VTC appearance for the
claimant or any other individual ‘‘if
[VTC] technology is available to conduct
the appearance, use of [VTC] to conduct
the appearance would be more efficient
than conducting the appearance in
person, and the [ALJ] does not
determine that there is a circumstance
in the particular case preventing use of
[VTC] to conduct the appearance.’’
(Emphasis added.) A ‘‘circumstance
preventing use of [VTC]’’ for an
appearance necessarily exists where the
ALJ ‘‘determines that the claimant’s
objection is based on a circumstance
that warrants having the witness appear
in person’’; therefore, deciding if there
is a circumstance that warrants having
a witness appear in person is requisite
to deciding if there is a circumstance
preventing use of VTC to conduct an
appearance.
Comment: This commenter further
recommended that our rules should
include a requirement that the ALJ
consider other factors, such as
limitations of the claimant or the
representative, that could affect how the
hearing is conducted. In this respect, the
commenter suggested that we consider
including in our rules guidance like that
in language from the preamble to the
final rules with request for comment
indicating that, in deciding whether the
claimant’s appearance should be
scheduled to occur in person or by VTC,
the ALJ ‘‘will consider any stated
preference of the claimant or the
representative for or against appearing
by VTC, as well as the availability of

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FR 5215 (2003).

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VTC technology and other factors, such
as a claimant’s loss of visual and
auditory capacities, that may affect how
the appearance should be conducted.’’ 9
Another commenter, a claimant’s
representative who personally has a
hearing loss that would interfere with
his ability to understand and to question
a witness appearing by VTC, made a
similar comment.
Response: We are making no change
in response to these commenters
because our rules already include
provisions to require consideration of
any factors that would compromise the
integrity or fairness of the hearing or
make it inappropriate to use VTC for
any reason. These provisions are
reinforced by provisions that require the
ALJ to consider the efficiency of
scheduling an appearance to occur by
VTC.
In setting the time and place for the
hearing, the ALJ is required under
§§ 404.936(c) and 416.1436(c) to
determine whether the appearance of
the claimant or any other individual
appearing at the hearing will be made in
person or by VTC. To make that
determination, the ALJ is required by
the provisions of these sections to
determine if there is a circumstance
preventing use of VTC for the
appearance. As the cited preamble
language reflects, determining if there is
such a circumstance requires the ALJ to
consider if there is any factor or factors,
such as an auditory loss on the part of
one of the participants, that would
interfere with using VTC for the
appearance. The factors considered will
necessarily include any visual or
auditory limitations on the part of the
claimant’s representative that could
compromise the ability of the
representative to participate effectively
in observing, understanding, and
questioning the expert if VTC is used to
take the expert’s testimony.10
Under §§ 404.936(c)and 416.1436(c)
of the final rules with request for
comment, the efficiency of using VTC
for an appearance is one of the factors
the ALJ must consider in deciding if an
appearance should be scheduled to
occur by VTC or in person. As we
explained above and in the prior
preambles to these rules, we plan to use
VTC in the service area of a hearing
9 68

FR 5213 (2003).
HALLEX instructions implementing VTC
procedures specify that the circumstances that
might cause the ALJ to require an in-person
appearance include that in which the claimant or
the representative has a visual or auditory
impairment of a type that could adversely affect his
or her ability to appear and participate in the
hearing through VTC, either for the purpose of
interacting with the ALJ or another participant in
the hearing. (TI–I–5–1–16 III.B.)
10 Our

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Federal Register / Vol. 68, No. 238 / Thursday, December 11, 2003 / Rules and Regulations
office when the Associate Commissioner
for OHA determines that appearances at
hearings conducted in the areas can be
conducted more efficiently by VTC than
in person. However, while the Associate
Commissioner makes the decision about
the general efficiency of using VTC in
an area, the ALJ is responsible for
determining if using VTC for any
appearance in a particular case will be
efficient.
Comment: The same organization also
commented that our rules should
require the hearing notice to include a
statement that a ME and/or a VE will
appear by VTC and provide an
opportunity to object.
Response: Sections 404.938(b) and
416.1438(b) of the final rules with
request for comment specify that the
claimant ‘‘will also be told if [his/her]
appearance or that of any other party or
witness is scheduled to be made by
[VTC] rather than in person.’’ We reflect
these requirements in HALLEX
guidance that modifies our standardized
notices of hearing to notify claimants
that a witness will appear by VTC and
to advise them explicitly of their right
to object to any aspect of the hearing
(see Footnote 7 above).
Regulatory Procedures
Executive Order 12866, As Amended by
Executive Order 13258
We have consulted with the Office of
Management and Budget (OMB) and
determined that this final rules
document meets the criteria for a
significant regulatory action under
Executive Order 12866, as amended by
Executive Order 13258. Thus, it was
reviewed by OMB.
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
The Paperwork Reduction Act (PRA)
of 1995 says that no persons are
required to respond to a collection of
information unless it displays a valid
OMB control number. In accordance
with the PRA, SSA is providing notice
that the Office of Management and
Budget has approved the information
collection requirements contained in
§§ 404.929, 404.936(d), (e) & (f),
404.938(c) (HA–504), 404.950(a),
416.1429, 416.1436(d), (e) and (f),
416.1438(c) (HA–504), and 416.1450(a)
of these final rules. The OMB control

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number for this collection is 0960–0671,
expiring November 30, 2004.
(Catalog of Federal Domestic Assistance
Program Nos. 96.001, Social SecurityDisability Insurance; 96.002, Social SecurityRetirement Insurance; 96.003, Social
Security-Special Benefits for Persons Aged 72
and Over; 96.004, Social Security-Survivors
Insurance; 96.006, Supplemental Security
Income.)

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

69009

form that FDA can process, review, and
archive. Submitting the content of
labeling in electronic format will
simplify the drug labeling review
process and speed up the approval of
labeling changes.
DATES: The rule is effective June 8, 2004.
FOR FURTHER INFORMATION CONTACT:
Randy Levin, Center for Drug
Evaluation and Research (CDER)
(HFD–001), Food and Drug
Administration, 5600 Fishers Lane,
Rockville, MD 20857, 301–827–
7756, or
Robert A. Yetter, Center for Biologics
Evaluation and Research (HFM–10),
Food and Drug Administration,
1401 Rockville Pike, Rockville, MD
20852, 301–827–0373.
SUPPLEMENTARY INFORMATION:
I. Background

In the Federal Register of May 3, 2002
(67 FR 22367), FDA published a
proposed rule to require the submission
of the content of labeling for human
prescription drugs and certain biologics
Dated: October 3, 2003.
in electronic format in a form that FDA
Jo Anne B. Barnhart,
can process, review, and archive. This
Commissioner of Social Security.
electronic submission requirement
would necessitate the amendment of
■ Accordingly, the final rules with
FDA’s regulations under §§ 314.50(l) (21
request for comment amending 20 CFR
parts 404 and 416 that were published at CFR 314.50(l)), 314.81(b)(2)(iii) (21 CFR
314.81(b)(2)(iii)), 314.94(d)(1) (21 CFR
68 FR 5210 on February 3, 2003, are
314.94(d)(1)), and the addition of
adopted as final rules without change.
§ 601.14 (21 CFR 601.14).
[FR Doc. 03–30691 Filed 12–10–03; 8:45 am]
Under current regulations, as noted in
BILLING CODE 4191–02–P
the preamble to the proposed rule,
labeling for the archival copy of an NDA
must be submitted to the agency on
DEPARTMENT OF HEALTH AND
paper, labeling for the archival copy of
HUMAN SERVICES
an ANDA may be submitted in any form
that FDA and the applicant agree upon,
Food and Drug Administration
and the current regulations for BLA
labeling do not specify a format for
21 CFR Parts 314 and 601
submission to the agency. The term
[Docket No. 2000N–1652]
‘‘labeling’’ used in §§ 314.50, 314.94,
314.81, and § 601.12 is defined in
RIN 0910–AB91
section 201(m) of the Federal Food,
Drug, and Cosmetic Act (the act) (21
Requirements for Submission of
Labeling for Human Prescription Drugs U.S.C. 321(m)) to mean both labels1 and
other written, printed, or graphic matter
and Biologics in Electronic Format
upon any article or any of its containers
AGENCY: Food and Drug Administration, or wrappers, or accompanying such
HHS.
article. Thus, requiring the submission
ACTION: Final rule.
of ‘‘labeling’’ entails submission of the
label (i.e., the label on the immediate
SUMMARY: The Food and Drug
container) and labeling. Labeling
Administration (FDA) is amending its
consists of the comprehensive
regulations governing the format in
prescription drug labeling directed to
which certain labeling is required to be
health care practitioners (i.e., the
submitted for review with new drug
labeling required under § 201.100(d)(3)
applications (NDAs), certain biological
(21 CFR 201.100(d)(3)), commonly
license applications (BLAs), abbreviated referred to as the ‘‘package insert’’ or
new drug applications (ANDAs),
supplements, and annual reports. The
1 Under section 201(k) of the act, the term ‘‘label’’
final rule requires that certain labeling
means a display of written, printed, or graphic
content be submitted electronically in a matter upon the immediate container of any article.

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