[Federal Register Volume 65, Number 127 (Friday, June 30, 2000)]
[Rules and Regulations]
[Pages 40492-40496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16553]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Part 416

RIN 0960-AE77


Denial of Supplemental Security Income (SSI) Benefits for 
Fugitive Felons and Probation and Parole Violators

AGENCY: Social Security Administration (SSA).

ACTION: Final rules.

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SUMMARY: These final regulations change our rules to reflect an 
amendment to the Social Security Act (the Act) made by Public Law (Pub. 
L.) 104-193, the Personal Responsibility and Work Opportunity 
Reconciliation Act of 1996. The amendment prohibits payment of SSI 
benefits to certain fugitives and probation and parole violators.

[[Page 40493]]


EFFECTIVE DATE: These final regulations are effective July 31, 2000.

FOR FURTHER INFORMATION CONTACT: Teresa Robinson, Social Insurance 
Specialist, Social Security Administration, Office of Program Benefits, 
3-R-1 Operations Building, 6401 Security Boulevard, Baltimore, MD 
21235-6401, (410) 965-7960 or TTY (410) 966-5609. For information on 
eligibility, claiming benefits, or coverage of earnings, call our 
national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778.

SUPPLEMENTARY INFORMATION:

Background

    Section 202(a) of Pub. L. 104-193 added section 1611(e)(5) of the 
Act to preclude eligibility for SSI benefits for certain fugitives and 
probation and parole violators. In general, section 1611(e)(5) of the 
Act provides that a person shall not be considered an eligible 
individual or eligible spouse for purposes of the SSI program for any 
month during which the person is--
     Fleeing to avoid prosecution for a crime, or an attempt to 
commit a crime, which is a felony under the laws of the place from 
which the person flees (or which, in the case of the State of New 
Jersey, is a high misdemeanor under the laws of that State);
     Fleeing to avoid custody or confinement after conviction 
for a crime, or an attempt to commit a crime, which is a felony under 
the laws of the place from which the person flees (or which, in the 
case of the State of New Jersey, is a high misdemeanor under the laws 
of that State); or
     Violating a condition of probation or parole imposed under 
Federal or State law.
    Section 1611(e)(5) of the Act was effective on August 22, 1996, the 
date of the enactment of Pub. L. 104-193, and applies with respect to 
eligibility for SSI benefits for months beginning in August 1996.

Explanation of Final Regulations

    These final rules amend our regulations for the SSI program to 
indicate that a person will not be eligible for SSI benefits under the 
circumstances described in section 1611(e)(5) of the Act. They make 
changes to our regulations in subparts B, G, and M of 20 CFR part 416 
to implement section 202(a) of Pub. L. 104-193.
    Subpart B explains the general rules that we apply in determining a 
person's eligibility for SSI benefits. In general, a person may be 
eligible for SSI benefits if he or she is a resident of the United 
States, has limited income and resources, and is age 65 or older, 
blind, or disabled.
    Section 416.202 of subpart B lists the basic requirements which 
must be met in order for a person to be eligible for SSI benefits. We 
are amending Sec. 416.202 to state that, in order to be eligible for 
SSI benefits, a person must not be--
    (1) Fleeing to avoid prosecution for a crime, or an attempt to 
commit a crime, which is a felony under the laws of the place from 
which the person flees (or which, in the case of the State of New 
Jersey, is a high misdemeanor under the laws of that State);
    (2) Fleeing to avoid custody or confinement after conviction for a 
crime, or an attempt to commit a crime, which is a felony under the 
laws of the place from which the person flees (or which, in the case of 
the State of New Jersey, is a high misdemeanor under the laws of that 
State); or
    (3) Violating a condition of probation or parole imposed under 
Federal or State law.
    To make this change, we are redesignating existing paragraph (f) of 
Sec. 416.202 as paragraph (g) and adding a new paragraph (f) which 
would contain the provisions described above.
    Our regulations in subpart G of part 416 require an SSI recipient, 
a representative payee of an SSI recipient, or an applicant for SSI 
benefits to report events that may affect eligibility or continued 
eligibility for SSI benefits or the amount of benefits. The regulations 
explain that a failure to make a timely report of such an event may 
result in the assessment of a penalty deduction against an individual's 
benefits.
    We recognize that many SSI applicants do not report their status 
under section 1611(e)(5) of the Act to us. Thus, we will not depend on 
the reports of the individual recipient or applicant for information 
that he or she is fleeing prosecution, custody or confinement or 
violating a condition of probation or parole. We will seek law 
enforcement information in determining whether someone is ineligible 
under this provision. Our principal source will be records of Federal 
and State law enforcement agencies and penal institutions, but we will 
continue to explore all avenues of information which will help us 
decide whether individuals are ineligible, particularly under the 
provisions of section 1611(e)(5) of the Act.
    Even though we will not be considering claimants as a primary 
source of information regarding their status under section 1615(e)(5), 
it is important to include this self-reporting requirement in the 
regulations for purposes of imposing monetary penalties under the Act. 
Section 416.708 of subpart G describes events which must be reported by 
an individual receiving SSI benefits, a representative payee for an SSI 
recipient, or an applicant awaiting a final decision on an application 
for SSI benefits. We are amending Sec. 416.708 by adding a new 
paragraph (o) to provide that an individual must report to us that he 
or she is fleeing to avoid prosecution for a crime, fleeing to avoid 
custody or confinement after conviction for a crime, or violating a 
condition of probation or parole, in the circumstances described in 
section 1611(e)(5) of the Act.
    Subpart M of part 416 provides rules for suspending or terminating 
an individual's SSI benefit payments when he or she no longer meets the 
requirements for eligibility for SSI benefits. We are adding new 
Sec. 416.1339 to this subpart to explain the requirement to suspend 
payments when an SSI recipient is found to be an individual who falls 
under one of the provisions of section 1611(e)(5) of the Act.
    Section 416.1339 provides that suspension of benefit payments 
because an individual is a fugitive or a probation or parole violator, 
as described above, is effective with the first day of whichever of the 
following months is earlier--
     The month in which a warrant or order for the individual's 
arrest or apprehension, an order requiring the individual's appearance 
before a court or other appropriate tribunal (e.g., a parole board), or 
a similar order is issued by a court or other duly authorized tribunal 
on the basis of an appropriate finding that the individual--
    (1) Is fleeing, or has fled, to avoid prosecution for a crime, or 
an attempt to commit a crime, which is a felony under the laws of the 
place from which the person flees (or which, in the case of the State 
of New Jersey, is a high misdemeanor under the laws of that State);
    (2) Is fleeing, or has fled, to avoid custody or confinement after 
conviction for a crime, or an attempt to commit a crime, which is a 
felony under the laws of the place from which the person flees (or 
which, in the case of the State of New Jersey, is a high misdemeanor 
under the laws of that State); or
    (3) Is violating, or has violated, a condition of his or her 
probation or parole imposed under Federal or State law; or
     The first month during which the individual fled to avoid 
such prosecution, fled to avoid such custody

[[Page 40494]]

or confinement after conviction, or violated a condition of his or her 
probation or parole, if indicated in such warrant or order, or in a 
decision by a court or other appropriate tribunal.
    Section 416.1339 explains that an individual will not be considered 
to be ineligible for SSI benefits and benefit payments will not be 
suspended under the provisions of that section for any month prior to 
August 1996.
    Section 416.1339 also explains that benefits will be resumed, if 
otherwise payable, effective with the first month throughout which the 
individual is determined to be no longer fleeing to avoid such 
prosecution, fleeing to avoid such custody or confinement after 
conviction, or violating a condition of his or her probation or parole.
    We are also amending the second sentence of Sec. 416.1337(b)(3)(ii) 
which contains a cross-reference to the sections of subpart M which 
describe conditions under which SSI benefits are suspended. We are 
revising the cross-reference to include a reference to new 
Sec. 416.1339.

Comments on Notice of Proposed Rulemaking (NPRM)

    On June 12, 1998, we published an NPRM in the Federal Register at 
63 FR 32161 proposing to change our rules to prohibit payment of SSI 
benefits to certain fugitives and probation and parole violators. 
Interested parties were invited to participate in this rulemaking 
proceeding and were afforded 60 days within which to submit written 
comments on the proposal to SSA. We received two letters with public 
comments. Following are summaries of these comments and our responses 
to them.
    Comment: One commenter said that he interprets ``fleeing to avoid 
prosecution for a crime'' to mean that the person fleeing has been 
indicted for a criminal act. He questions whether, absent an 
indictment, one can truly say that an individual is fleeing prosecution 
for a crime.
    Response: While we understand the points raised by the commenter, 
we do not agree with this interpretation of the statute. Prosecution of 
an individual includes all steps necessary to reach a judicial 
determination of guilt or innocence beginning the day the information, 
criminal complaint or petition is filed with the proper authorities and 
a warrant is issued. This occurs when law enforcement personnel present 
evidence to a judge or magistrate that convinces him or her that it is 
reasonably likely that a crime has taken place and that the individual 
is criminally responsible for that crime. In these cases, the judge or 
magistrate issues a warrant for the individual's arrest. For an 
individual to be indicted, an accusation must be found and presented to 
the court by a grand jury. Because there are situations in which 
individuals are prosecuted without indictment, it would be contrary to 
statute to adopt this suggestion.
    Comment: This same commenter points out that the proposed 
regulations fail to say whether or not an individual must be aware that 
he or she has been indicted for an alleged criminal act.
    Response: We have no way of determining whether or not an 
individual is aware that he or she is wanted for a criminal offense and 
is knowingly fleeing from prosecution. We must rely on official reports 
and other similar determinations from various law enforcement agencies 
that an individual is fleeing to avoid prosecution.
    Comment: This commenter also suggested that we further define 
``violating a condition of probation or parole imposed under Federal or 
State law,'' to exclude minor infractions such as missing an 
appointment with a parole officer. The commenter feels that unless an 
individual has been adjudicated by a State or by the Federal government 
to be in violation of probation or parole, SSA has no basis for 
discontinuing or denying benefits.
    Response: As we state in Sec. 416.1339(b) of these final rules, SSI 
payments will be stopped when a court or other authorized tribunal 
finds that the individual is violating, or has violated, a condition of 
his or her probation or parole and the court has either: issued an 
order for the individual's arrest or apprehension, or issued an order 
requiring the individual's appearance before a court or other tribunal. 
Of course, individuals may dispute a finding that they are in violation 
of their probation or parole with the reporting agency.
    Comment: In addition to the above comments, the commenter expressed 
concern about the overly strict implementation of this statute and the 
impact it will have on petty criminals. He cited an example of an 
individual who moved to a different State ten years ago, thereby 
violating a condition of his parole commitment. The originating crime 
was not violent in nature and the State with jurisdiction of the parole 
order does not seek to have him returned. The commenter indicates that 
this example should not be covered under this provision of the law.
    Response: We disagree with the commenter's interpretation of the 
statute. Section 1611(e)(5) of the Act prohibits SSI benefits to any 
person who is violating a condition of probation or parole imposed 
under Federal or State law. Congress did not provide exceptions to this 
rule based on the nature of the originating crime or the State's 
reluctance to extradite the individual. We believe this legislation was 
passed to purposely prohibit the expenditure of Federal funds to aid 
those who are violating the law. However, as we explained earlier, we 
will not suspend an individual's SSI benefit until a court or other 
authorized tribunal determines that his or her parole has been 
violated, and has issued an official document.
    Comment: The other commenter pointed out what he sees as redundancy 
in the phrase ``crime, or an attempt to commit a crime, which is a 
felony.'' He makes the argument that ``an attempt to commit a crime'' 
actually is a crime. In this commenter's opinion, the phrase ``or an 
attempt to commit a crime'' is illogical and confusing and should be 
omitted.
    Response: To adopt this position, we must presume that Congress 
intended that the crime itself and the crime of attempting to commit a 
crime both be of felony-level severity. Under this interpretation, we 
agree that the phrase ``attempt to commit a crime'' would be rendered 
meaningless. However, we are required to give effect to all the 
language of the statute. We believe that the wording of section 
1611(e)(5) and its legislative history support our position that 
Congress intended that the crime the individual attempts to commit must 
be a felony, but the crime of attempting to commit that crime does not 
necessarily have to be. Therefore, the omission of the phrase ``or an 
attempt to commit a crime'' would not accurately reflect the 
congressional intent in our final rules, and its inclusion is not 
redundant.
    For the reasons discussed above, we have not changed the text of 
the proposed rules to reflect the public comments. However, we have 
made one minor technical correction to Sec. 416.1337 to change the word 
``him'' to say ``him or her''. Other than this one minor technical 
change, we are publishing the proposed regulations unchanged as final 
regulations.

Regulatory Procedures

Executive Order 12866

    These final rules have been reviewed by the Office of Management 
and Budget (OMB) under the provisions of Executive Order 12866.

[[Page 40495]]

Regulatory Flexibility Act

    We certify that these final regulations will not have a significant 
economic impact on a substantial number of small entities because these 
rules affect only individuals. Therefore, a regulatory flexibility 
analysis as provided in Pub. L. 96-354, the Regulatory Flexibility Act, 
as amended by Pub. L. 104-121, is not required.

Paperwork Reduction Act

    These final rules contain a reporting requirement in 
Sec. 416.708(o). As required by 44 U.S.C. 3507, as amended by section 2 
of the Paperwork Reduction Act of 1995, we submitted a copy of these 
rules to OMB for its review and OMB has approved the reporting 
requirement under OMB No. 0960-0617.
    The information collected will be used by SSA to deny eligibility 
for SSI benefits or to suspend SSI benefit payments to individuals who 
flee to avoid prosecution, or custody or confinement after conviction, 
or who violate a condition of probation or parole. The respondents are 
SSI applicants, recipients or representative payees. We estimate that 
the reporting burden will be 1 minute per response for 1,000 
respondents, resulting in 16.7 annual burden hours. This includes the 
time it will take to read any instructions and provide the information.

(Catalog of Federal Domestic Assistance Program No 96.006, 
Supplemental Security Income)

List of Subjects in 20 CFR Part 416

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

    Dated: April 14, 2000.
Kenneth S. Apfel,
Commissioner of Social Security.

    For the reasons set out in the preamble, subparts B, G, and M of 
part 416 of chapter III of title 20 of the Code of Federal Regulations 
are amended as follows:

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

Subpart B--[Amended]

    1. The authority citation for subpart B of part 416 continues to 
read as follows:

    Authority:  Secs. 702(a)(5), 1110(b), 1602, 1611, 1614, 1615(c), 
1619(a), 1631, and 1634 of the Social Security Act (42 U.S.C. 
902(a)(5), 1310(b), 1381a, 1382, 1382c, 1382d(c), 1382h(a), 1383, 
and 1383c); secs. 211 and 212, Pub. L. 93-66, 87 Stat. 154 and 155 
(42 U.S.C. 1382 note); sec. 502(a), Pub. L. 94-241, 90 Stat. 268 (48 
U.S.C. 1681 note); sec. 2, Pub. L. 99-643, 100 Stat. 3574 (42 U.S.C. 
1382h note).


    2. Section 416.202 is amended by redesignating paragraph (f) as 
paragraph (g) and by adding a new paragraph (f) to read as follows:


Sec. 416.202  Who may get SSI benefits.

* * * * *
    (f) You are not--
    (1) Fleeing to avoid prosecution for a crime, or an attempt to 
commit a crime, which is a felony under the laws of the place from 
which you flee (or which, in the case of the State of New Jersey, is a 
high misdemeanor under the laws of that State);
    (2) Fleeing to avoid custody or confinement after conviction for a 
crime, or an attempt to commit a crime, which is a felony under the 
laws of the place from which you flee (or which, in the case of the 
State of New Jersey, is a high misdemeanor under the laws of that 
State); or
    (3) Violating a condition of probation or parole imposed under 
Federal or State law.
* * * * *

Subpart G--[Amended]

    3. The authority citation for subpart G of part 416 continues to 
read as follows:

    Authority: Secs. 702(a)(5), 1611, 1612, 1613, 1614, and 1631 of 
the Social Security Act (42 U.S.C. 902(a)(5), 1382, 1382a, 1382b, 
1382c, and 1383); sec. 211, Pub. L. 93-66, 87 Stat. 154 (42 U.S.C. 
1382 note).


    4. Section 416.708 is amended by adding a new paragraph (o) to read 
as follows:


Sec. 416.708  What you must report.

* * * * *
    (o) Fleeing to avoid criminal prosecution or custody or confinement 
after conviction, or violating probation or parole. You must report to 
us that you are--
    (1) Fleeing to avoid prosecution for a crime, or an attempt to 
commit a crime, which is a felony under the laws of the place from 
which you flee (or which, in the case of the State of New Jersey, is a 
high misdemeanor under the laws of that State);
    (2) Fleeing to avoid custody or confinement after conviction for a 
crime, or an attempt to commit a crime, which is a felony under the 
laws of the place from which you flee (or which, in the case of the 
State of New Jersey, is a high misdemeanor under the laws of that 
State); or
    (3) Violating a condition of probation or parole imposed under 
Federal or State law.

Subpart M--[Amended]

    5. The authority citation for subpart M of part 416 continues to 
read as follows:

    Authority: Secs. 702(a)(5), 1611-1615, 1619, and 1631 of the 
Social Security Act (42 U.S.C. 902(a)(5), 1382-1382d, 1382h, and 
1383).


    6. In Sec. 416.1337, the second sentence of paragraph (b)(3)(ii) is 
revised to read as follows:


Sec. 416.1337  Exceptions to the continuation of previously established 
payment level.

* * * * *
    (b) * * *
    (3) * * *
    (ii) * * * However, if the individual's benefits had been correctly 
suspended as provided in Secs. 416.1321 through 416.1330 or 
Sec. 416.1339 and they should have remained suspended but a benefit 
that exceeded the dollar limitation was paid, no further payment shall 
be made to him or her at this time and notice of the planned action 
shall not contain any provision regarding continuation of payment 
pending appeal. * * *
* * * * *
    7. Section 416.1339 is added to read as follows:


Sec. 416.1339  Suspension due to flight to avoid criminal prosecution 
or custody or confinement after conviction, or due to violation of 
probation or parole.

    (a) Basis for suspension. An individual is ineligible for SSI 
benefits for any month during which he or she is--
    (1) Fleeing to avoid prosecution for a crime, or an attempt to 
commit a crime, which is a felony under the laws of the place from 
which the individual flees (or which, in the case of the State of New 
Jersey, is a high misdemeanor under the laws of that State); or
    (2) Fleeing to avoid custody or confinement after conviction for a 
crime, or an attempt to commit a crime, which is a felony under the 
laws of the place from which the individual flees (or which, in the 
case of the State of New Jersey, is a high misdemeanor under the laws 
of that State); or
    (3) Violating a condition of probation or parole imposed under 
Federal or State law.
    (b) Suspension effective date. (1) Suspension of benefit payments 
because an individual is a fugitive as described in paragraph (a)(1) or 
(a)(2) of this section or a probation or parole violator as described 
in paragraph (a)(3) of this section is effective with the first day of

[[Page 40496]]

whichever of the following months is earlier--
    (i) The month in which a warrant or order for the individual's 
arrest or apprehension, an order requiring the individual's appearance 
before a court or other appropriate tribunal (e.g., a parole board), or 
similar order is issued by a court or other duly authorized tribunal on 
the basis of an appropriate finding that the individual--
    (A) Is fleeing, or has fled, to avoid prosecution as described in 
paragraph (a)(1) of this section;
    (B) Is fleeing, or has fled, to avoid custody or confinement after 
conviction as described in paragraph (a)(2) of this section;
    (C) Is violating, or has violated, a condition of his or her 
probation or parole as described in paragraph (a)(3) of this section; 
or
    (ii) The first month during which the individual fled to avoid such 
prosecution, fled to avoid such custody or confinement after 
conviction, or violated a condition of his or her probation or parole, 
if indicated in such warrant or order, or in a decision by a court or 
other appropriate tribunal.
    (2) An individual will not be considered to be ineligible for SSI 
benefits and benefit payments will not be suspended under this section 
for any month prior to August 1996.
    (c) Resumption of payments. If benefits are otherwise payable, they 
will be resumed effective with the first month throughout which the 
individual is determined to be no longer fleeing to avoid such 
prosecution, fleeing to avoid such custody or confinement after 
conviction, or violating a condition of his or her probation or parole.

[FR Doc. 00-16553 Filed 6-29-00; 8:45 am]
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