[Federal Register Volume 70, Number 61 (Thursday, March 31, 2005)]
[Rules and Regulations]
[Pages 16409-16411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6400]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Part 404

[Regulations No. 4]
RIN 0960-AG16


Nonpayment of Benefits When the Social Security Administration 
Receives Notice That an Insured Person Is Deported or Removed From the 
United States

AGENCY: Social Security Administration (SSA).

ACTION: Final rule.

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SUMMARY: To implement part of the Social Security Protection Act of 
2004 (SSPA), we are revising our regulations that prohibit payment of 
monthly benefits and the lump sum death payment under title II of the 
Social Security Act (the Act) when SSA receives notice that an insured 
person is deported or removed from the United States under certain 
provisions of the Immigration and Nationality Act (INA).

DATES: These regulations are effective March 31, 2005.

Electronic Version

    The electronic file of this document is available on the date of 
publication in the Federal Register 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/LawsRegs.

FOR FURTHER INFORMATION CONTACT: Richard Bresnick, Social Insurance 
Specialist, Office of Regulations, Social Security Administration, 100 
Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, 
(410) 965-1758 or TTY (410) 966-5609. For information on eligibility or 
filing for benefits, call our national toll-free number, 1-800-772-1213 
or TTY 1-800-325-0778, or visit our Internet site, Social Security 
Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION:

Background

    Section 412 of the SSPA, Public Law 108-203, enacted on March 2, 
2004, modifies the provisions of section 202(n) of the Act. Those 
provisions prohibit the payment of title II benefits to the insured 
person on a record (and, in some cases, to dependents or survivors 
otherwise entitled on that record) when SSA receives notice of the 
insured person's deportation or removal from the United States under 
the provisions of the INA. Section 412 was enacted, in part, to conform 
the Act to amendments to the INA enacted April 1, 1997, under the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 
(the Immigration Reform Act), Public Law 104-208. The Immigration 
Reform Act changed the terminology, section references and function of 
many provisions of the INA that, in turn, affect section 202(n) of the 
Act.
    The Immigration Reform Act combined into a single removal process 
the formerly separate legal processes for deporting and excluding 
aliens from the United States. Under this process, aliens are removed 
as either deportable or inadmissible. The Immigration Reform Act also 
changed the legal process applicable to illegal aliens; i.e., those who 
are present in the United States (regardless of how long) without 
having been lawfully admitted. Although they may be apprehended in the 
United States, illegal aliens are no longer charged as deportable or 
subject to the deportation process as they had been before the 
Immigration Reform Act. Instead, they are charged as inadmissible and 
subject to removal under the process applied to aliens who are seeking 
entry into the United States. With this change, effective April 1, 
1997, illegal aliens no longer met the specific conditions for 
nonpayment of their title II benefits under section 202(n) of the Act 
which, from the time of enactment in 1954, applied to deported aliens 
only.
    Section 412 of the SSPA amends section 202(n) to coordinate with 
the amendments to the INA by:
     Replacing the terms ``deportation'' and ``deported,'' 
wherever they appear in the text of the statute, with ``removal'' and 
``removed,'' respectively;
     Changing the reference to the INA citation that specifies 
the grounds for removal of an alien as deportable from section 241(a) 
to section 237(a);

[[Page 16410]]

     Adding to the statute provisions that prohibit payment of 
title II retirement or disability benefits to insured persons who are 
removed as inadmissible (under INA section 212(a)(6)(A)) on grounds of 
entering the United States illegally. (This change effectively 
maintains the scope and basic intent of section 202(n) of the Act, as 
originally enacted, by preventing illegal aliens, once considered 
deportable and now classified as inadmissible under the INA, from 
avoiding benefit suspension when they are removed from the United 
States.)
    Section 412 includes the following additional changes to section 
202(n) of the Act that are not related to the INA amendments:
     Specifies that the Secretary of Homeland Security (or the 
U.S. Attorney General) will provide the notice of deportation or 
removal required to apply the nonpayment provisions. (The Attorney 
General was the sole source of these notices to SSA prior to the 
creation of the Department of Homeland Security.); and
     Terminates the exception incorporated into section 202(n) 
of the Act, as originally enacted in 1954, that exempted aliens who 
were deported on grounds of smuggling other aliens into the United 
States (under INA section 241(a)(1)(E)) from nonpayment of their title 
II retirement or disability benefits. This exception ceases to apply to 
deportations (or removals on grounds of deportability) reported to SSA 
by the Secretary of Homeland Security or the U.S. Attorney General 
after March 2, 2004, the date of enactment of the SSPA.

Explanation of Changes

    We are revising the regulations in 20 CFR 404.464 to make them 
easier for the public to understand and to reflect the changes to 
section 202(n) of the Act that were enacted under section 412 of the 
SSPA. This includes:
     Under Sec.  404.464(a), adding to the reference to the 
Attorney General of the United States a reference to the Secretary of 
Homeland Security. These are the current sources of deportation and 
removal notices used to apply the provisions under section 202(n);
     Reorganizing Sec.  404.464(a) to show the specific 
sections of the INA (prior to and after the 1997 amendments to the INA) 
under which deportation or removal must have occurred for nonpayment 
under section 202(n) to apply. These include:
    (1) Section 241(a) of the INA in effect prior to April 1, 1997;
    (2) Section 237(a) of the INA, as effective beginning April 1, 
1997, applicable to aliens removed as deportable; and
    (3) Section 212(a)(6)(A) of the INA, as effective beginning April 
1, 1997, applicable to aliens removed as inadmissible on grounds of 
illegal entry into the United States. We have left intact the reference 
to section 241(a) of the INA in effect prior to April 1, 1997 (item (1) 
above) since SSA must continue to apply the deportation provisions of 
the Act, if warranted, to any future claims filed on the records of 
number holders who were reported to SSA in the past as having been 
deported under that section of the immigration law.
     Adding text to Sec. Sec.  404.464(a)(1)(i)(B) and 
(a)(1)(ii)(B) to show that aliens who were deported under paragraph 
(1)(E) of INA section 241(a), in effect prior to April 1, 1997, or 
removed as deportable under paragraph (1)(E) of section 237(a) of the 
INA, as amended in 1997, are excepted from the nonpayment provisions 
only if notice of their deportation or removal was received by SSA from 
the Secretary of Homeland Security or the Attorney General before March 
3, 2004. This is a reference to the amendments effective March 3, 2004 
under section 412 of the SSPA that end the exemption granted under the 
original provisions of section 202(n) to aliens deported (or removed as 
deportable) on grounds of smuggling other aliens into the United 
States.
     Amending Sec.  404.464(b) to improve its clarity and more 
accurately reflect certain language in section 202(n)(1)(B) of the 
Social Security Act. The relevant statutory language provides that an 
alien outside the United States during any part of a given month cannot 
receive a monthly survivor benefit for that month on the record of a 
deceased insured person in the event that the deceased (if still alive) 
could not have been paid a retirement or disability benefit for that 
month because of deportation or removal under section 202(n)(1)(A) of 
the Social Security Act (as implemented by Sec.  404.464(a)(1)).
     Amending the text in Sec.  404.464(c) pertaining to the 
lump sum death payment to conform with and refer to the amended 
provisions under Sec.  404.464(a).

Regulatory Procedures

    Pursuant to section 702(a)(5) of the Social Security Act, 42 U.S.C. 
902(a)(5), SSA follows the Administrative Procedure Act (APA) 
rulemaking procedures specified in 5 U.S.C. 553 in the development of 
its regulations. The APA provides exceptions to its prior notice and 
public comment procedures when an agency finds there is good cause for 
dispensing with such procedures on the basis that they are 
impracticable, unnecessary, or contrary to the public interest.
    In the case of these final rules, we have determined that, under 5 
U.S.C. 553(b)(B), good cause exists for dispensing with the notice and 
public comment procedures because such procedures are unnecessary. Good 
cause exists because these regulations merely conform our rules to the 
self-implementing provisions in section 412 of the SSPA. Therefore, 
opportunity for prior comment is unnecessary, and we are issuing these 
regulations as final rules.
    In addition, we find good cause for dispensing with the 30-day 
delay in the effective date of a substantive rule, provided for by 5 
U.S.C. 553(d). These revisions conform our rules to the provision 
enacted in the SSPA. However, without these changes, our rules will 
conflict with current law and may mislead the public. Therefore, we 
find that it is in the interest of the public to make these rules 
effective upon publication.

Executive Order 12866

    We have consulted with the Office of Management and Budget (OMB) 
and determined that these rules meet the requirements for a significant 
regulatory action under Executive Order 12866, as amended by Executive 
Order 13258. Thus, they were subject to OMB review. We have also 
determined that these rules meet the plain language requirement of 
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 because they affect 
only individuals. Thus, a regulatory flexibility analysis as provided 
in the Regulatory Flexibility Act, as amended, is not required.

Paperwork Reduction Act

    These regulations impose no reporting or recordkeeping requirements 
subject to OMB clearance.

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

List of Subjects in 20 CFR Part 404

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


[[Page 16411]]


    Dated: January 7, 2005.
Jo Anne B. Barnhart,
Commissioner of Social Security.

0
For the reasons set out in the preamble, we are amending subpart E of 
part 404 of chapter III of title 20 of the Code of Federal Regulations 
as set forth below:

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

Subpart E--[Amended]

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

    Authority: Secs. 202, 203, 204(a) and (e), 205(a) and (c), 
216(1), 223(e), 224, 225, 702(a)(5), and 1129A of the Social 
Security Act (42 U.S.C. 402, 403, 404(a) and (e), 405(a) and (c), 
416(1), 423(e), 424a, 425, 902(a)(5), and 1320a-8a) and 48 U.S.C. 
1801.


0
2. Section 404.464 is revised to read as follows:


Sec.  404.464  How does deportation or removal from the United States 
affect the receipt of benefits?

    (a) Old-age or disability insurance benefits. (1) You cannot 
receive an old-age or disability benefit for any month that occurs 
after the month we receive notice from the Secretary of Homeland 
Security or the Attorney General of the United States that you were:
    (i) Deported under the provisions of section 241(a) of the 
Immigration and Nationality Act (INA) that were in effect before April 
1, 1997, unless your deportation was under:
    (A) Paragraph (1)(C) of that section; or
    (B) Paragraph (1)(E) of that section and we received notice of your 
deportation under this paragraph before March 3, 2004;
    (ii) Removed as deportable under the provisions of section 237(a) 
of the INA as in effect beginning April 1, 1997, unless your removal 
was under:
    (A) Paragraph (1)(C) of that section; or
    (B) Paragraph (1)(E) of that section and we received notice of your 
removal under this paragraph before March 3, 2004; or
    (iii) Removed as inadmissible under the provisions of section 
212(a)(6)(A) of the INA as in effect beginning April 1, 1997.
    (2) Benefits that cannot be paid to you because of your deportation 
or removal under paragraph (a)(1) of this section may again be payable 
for any month subsequent to your deportation or removal that you are 
lawfully admitted to the United States for permanent residence. You are 
considered lawfully admitted for permanent residence as of the month 
you enter the United States with permission to reside here permanently.
    (b) Dependents or survivors benefits. If an insured person on whose 
record you are entitled cannot be paid (or could not have been paid 
while still alive) an old-age or disability benefit for a month(s) 
because of his or her deportation or removal under paragraph (a)(1) of 
this section, you cannot be paid a dependent or survivor benefit on the 
insured person's record for that month(s) unless:
    (1) You are a U.S citizen; or
    (2) You were present in the United States for the entire month. 
(This means you were not absent from the United States for any period 
during the month, no matter how short.)
    (c) Lump sum death payment. A lump sum death payment cannot be paid 
on the record of a person who died:
    (1) In or after the month we receive from the Secretary of Homeland 
Security or the Attorney General of the United States notice of his or 
her deportation or removal under the provisions of the INA specified in 
paragraph (a)(1) of this section (excluding the exceptions under 
paragraphs (a)(1)(i)(A) and (B) and (ii)(A) and (B) of this section); 
and
    (2) Before the month in which the deceased person was thereafter 
lawfully admitted to the United States for permanent residence.

[FR Doc. 05-6400 Filed 3-30-05; 8:45 am]
BILLING CODE 4191-02-P