2011-22492. Protecting the Public and Our Personnel to Ensure Operational Effectiveness

AGENCY:

Social Security Administration.

ACTION:

Interim final rule with request for comments.

SUMMARY:

We are publishing the process we follow when we ban an individual from entering our field offices. Due to escalating reports of threats to our personnel and our customers in our offices, we are taking steps to increase the level of protection we provide. We expect that this rule will result in a safer environment for our personnel and members of the public who use our facilities, while ensuring that we continue to serve the American people with as little disruption to our operations as possible.

DATES:

Effective Date: This interim final rule is effective September 2, 2011.

Comment date: To ensure that your comments are considered, we must receive them no later than November 1, 2011.

ADDRESSES:

You may submit comments by any one of three methods—Internet, fax, or mail. Do not submit the same comments multiple times or by more than one method. Regardless of which method you choose, please state that your comments refer to Docket No. SSA-2011-0052 so that we can associate your comments with the correct regulation.

Caution: You should be careful to include in your comments only information that you wish to make publicly available. We strongly urge you not to include in your comments any personal information, such as SSN or medical information.

1. Internet: We strongly recommend that you submit your comments via the Internet. Please visit the Federal eRulemaking portal at http://www.regulations.gov. Use the Search function to find docket number SSA-2011-0052. The system will issue a tracking number to confirm your submission. You will not be able to view your comment immediately because we must post each comment manually. It may take up to a week for your comment to be viewable.

2. Fax: Fax comments to [phone].

3. Mail: Mail your comments to the Office of Regulations, Social Security Administration, 107 Altmeyer Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.

Comments are available for public viewing on the Federal eRulemaking portal at http://www.regulations.gov or in person, during regular business hours, by arranging with the contact person identified below.

FOR FURTHER INFORMATION CONTACT:

Bill McClelland, Office of Public Service and Operations Support, 6401 Security Boulevard, Baltimore, Maryland 21235-6401, 410-965-8004. 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

Preventing violence is a growing concern for all Federal agencies, particularly the Social Security Administration. We touch the lives of virtually every American, often during times of personal hardship, transition, and uncertainty. In fiscal year (FY) 2010, we had 45 million visits to our field offices, 738,000 hearings before administrative law judges, and over 67 million calls to our national 800 number. Most interactions occur without incident, and 90% of visitors responding to our annual surveys rate our service as excellent, very good, or good. However, some people who visit or call our offices make threatening statements to and against our employees, other government employees, members of the public, our guards, and our office buildings. Unfortunately, some people go beyond verbal threats and physically assault our employees, guards, and members of the public.

As our workloads have risen in recent years, the number of reported threats to our employees has increased significantly. In FY 2010, we received nearly 2,800 reports of threats to our employees across the Nation, an increase of 43% from FY 2009. We respond promptly to these incidents and refer them to law enforcement for further action, when appropriate. We have increased the security measures in our field and hearing offices. We are using the resources Congress provided to handle disability benefit claims more quickly and accurately; we expect these actions will minimize the anxiety that claimants may experience when they seek benefits from us.

As we work to make our offices safer, we must consider risks to the public and our personnel, as well as our service delivery obligations. When we deem it necessary, we may ban an individual from entering our offices.

Section 702(a)(4) of the Social Security Act (Act) provides that the Commissioner is “responsible for the exercise of all powers and the discharge of all duties of the [agency], and shall have authority and control over all personnel and activities thereof.” The Act also authorizes the Commissioner to “prescribe such rules and regulations as [he or she] determines are necessary or appropriate to carry out the functions” of the agency. Section 702(a)(5) of the Act, 42 U.S.C. 902(a)(5). In order to ensure that the agency operates in an effective manner, the Commissioner determines the methods for providing service to the public and the means for minimizing operational disruptions.

The Commissioner's authority extends to placing reasonable restrictions on an individual's access to in-person services. Courts have held that an individual's right of access to Federal property can reasonably be limited in the interest of public safety.^[1] In developing this final rule, we are balancing an individual's right to obtain in-person Social Security services against the threat the individual poses to the safety of our personnel and our visitors. When balancing these interests, we also consider our obligation to effectively administer our programs.^[2]

In this final rule, we describe the process we will follow when determining whether to ban an individual from our offices. We may ban an individual from our offices when he or she: (1) Uses force or threats of force against our personnel or offices, including sending threatening letters or other communications; (2) engages in disruptive conduct that impedes our personnel from performing their duties; or (3) engages in disruptive behavior that prevents members of the public from obtaining services from us. When we ban an individual, the ban will apply to all of our offices nationwide.

We will ban an individual only after an agency manager determines that the individual poses a threat to the safety of our personnel or our visitors, our offices, or the operational effectiveness of the agency. We will provide the individual with written notice of the ban. The notice will contain the following information:

(a) Type of restriction. If we ban an individual from entering our offices, the ban will apply to all of our offices. A banned individual must obtain all future service through alternate means. We will provide in-person service only if the banned individual establishes that there are no alternate means available. A banned individual requesting in-person service must direct that request to the manager of the office that the individual is requesting to visit. If we determine that an office visit is warranted, we will schedule an appointment for the individual and send a certified letter notifying the individual of the date, time, and location of the appointment.

(b) Prohibited conduct. The notice will provide the banned individual with specific details of the prohibited conduct that served as the basis for our decision to ban him or her.

(c) Alternate means of service. The notice will provide information about the alternate channels of service available to an individual who we have banned.

1. The individual may use the online services available through our Web site at http://www.socialsecurity.gov;​;

2. The notice will include the contact information for the individual's local office. The individual may call the local office and ask to speak with the office manager or a supervisor;

3. The individual may call our national toll-free number at 1-800-772-1213 between the hours of 7 a.m. and 7 p.m., Monday through Friday. The individual should not try to schedule an in-person appointment through this number. If the individual is deaf or hard of hearing, he or she may call our toll-free TTY number at 1-800-325-0778;

4. The individual may write to the local office. An individual restricted from receiving in-person services from our personnel should address all correspondence to the attention of the office manager; or

5. With the written consent of the banned individual, another person may call, write, or visit us on his or her behalf.

(d) Appeal rights. A banned individual may appeal our determination. A banned individual must submit his or her appeal in writing to the address identified in the notice within 60 days of the date of the notice. The appeal should identify the individual's name, address, Social Security number, and the office that issued the ban notice. The appeal should clearly state why we should reconsider the ban determination and provide any supporting documentation. We may allow an additional 10 days for the late filing of an appeal if the individual shows good cause for the late filing. The ban will remain in effect while the appeal is pending. We will provide written notice of the appeal decision.

(e) Periodic request for review of ban decision. A banned individual may request review of our ban decision every three years. The three-year cycle to request review will begin on the date we issued the notice of the ban, or if the individual appealed, the date of our appeal decision. The individual must submit a request for review of a ban decision in writing to the address identified in the original notice of the ban. The request for review should identify the individual's name, address, Social Security number, and office that issued the ban notice. The request should clearly state why we should lift the ban and provide relevant documentation that supports removal of the restriction, including, medical documentation, applicable psychiatric evaluations, work history, and any criminal record. The banned individual must prove by a preponderance of the evidence (meaning that it is more likely than not) that he or she no longer poses a threat to the safety of our personnel, visitors, offices, or the operational effectiveness of the agency. We will notify the individual of our decision in writing.

We will post this regulation in a conspicuous place in our offices that serve the public.

Clarity of This Rule

Executive Order 12866, as supplemented by Executive Order 13563, requires each agency to write all rules in plain language. In addition to your substantive comments on this final rule, we invite your comments on how to make rules easier to understand.

For example:

• Would more, but shorter, sections be better?
• Are the requirements in the rule clearly stated?
• Have we organized the material to suit your needs?
• Could we improve clarity by adding tables, lists, or diagrams?
• What else could we do to make the rule easier to understand?
• Does the rule contain technical language or jargon that is not clear?
• Would a different format make the rule easier to understand, e.g. grouping and order of sections, use of headings, paragraphing?

When will we start to use this rule?

We will start to use this interim final rule on the date shown under the “Effective Date” section earlier in this preamble. However, we are also inviting public comments on the changes made by this rule. We will consider any relevant comments we receive, plan to publish another final rules document to respond to any such comments we receive, and will make any changes to the rules as appropriate based on the comments.

Regulatory Procedures

Justification for Issuing Final Rule Without Notice and Comment

We follow the Administrative Procedure Act (APA) rulemaking procedures specified in 5 U.S.C. 553 when developing regulations. See Section 702(a)(5) of the Social Security Act, 42 U.S.C. 902(a)(5). Generally, the APA requires that an agency provide prior notice and opportunity for public comment before issuing an interim final rule. The APA provides exceptions to its notice and public comment procedures when an agency finds there is good cause for dispensing with such procedures because they are impracticable, unnecessary, or contrary to the public interest. We have determined that good cause exists for dispensing with the notice and public comment procedures for this rule. 5 U.S.C. 553(b)(B).

As we noted above, the number of reported threats to our personnel and property has risen dramatically in recent years. In light of this increase, we believe we must take immediate action to implement this final rule as quickly as possible. The changes we are making in this final rule will increase our ability to protect our claimants, personnel, and other visitors to our offices, while at the same time fulfilling our mission to serve the American people. Accordingly, we find that prior public comment would be contrary to the public interest. However, we are inviting public comment on this final rule and will consider any substantive comments we receive within 60 days of the publication of this final rule.

In addition, for the reasons cited above, we also find good cause for dispensing with the 30-day delay in the effective date of this rule provided for in 5 U.S.C. 553(d)(3). Accordingly, we are making this interim final rule effective upon publication.

Executive Order 12866 As Supplemented by Executive Order 13563

We consulted with the Office of Management and Budget (OMB) and determined that this interim final rule met the criteria for a significant regulatory action under Executive Order 12866 as supplemented by Executive Order 13563. Thus, OMB reviewed the final rule.

Regulatory Flexibility Act

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

Paperwork Reduction Act

This rule does not create any new or affect any existing collections and, therefore, does not require OMB approval under the Paperwork Reduction Act.

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social Security—Disability Insurance; 96.002, Social Security—Retirement Insurance; 96.004, Social Security—Survivors Insurance; and 96.006, Supplemental Security Income)

List of Subjects in 20 CFR Part 422

• Administrative practice and procedure
• Organization and functions (Government agencies)
• Reporting and recordkeeping requirements
• Social security

Michael J. Astrue,

Commissioner of Social Security.

For the reasons set out in the preamble, we amend part 422 of chapter III of title 20 of the Code of Federal Regulations as set forth below:

PART 422—ORGANIZATION AND PROCEDURES

1. Add and reserve subpart I.

2. Add subpart J to Part 422 to read as follows:

Subpart J—Protecting the Public and Our Personnel To Ensure Operational Effectiveness

422.901

Scope and purpose.

422.902

Definition of personnel for purposes of this subpart.

422.903

Prohibited conduct.

422.904

Notice of the ban.

422.905

Appeal rights.

422.906

Periodic request for review of ban decision.

422.907

Posting requirement.

Subpart J—Protecting the Public and Our Personnel To Ensure Operational Effectiveness

Authority: Sec. 702(a)(4)-(5) of the Social Security Act (42 U.S.C. 902(a)(4)-(5)).

§ 422.901

Scope and purpose.

The regulations in this subpart describe the process we will follow when we decide whether to ban you from entering our offices. Due to increasing reports of threats to our personnel and the public, we are taking steps to increase the level of protection we provide to our personnel and to the public. The purpose of this subpart is to inform the public and our personnel of the conduct that will subject an individual to a ban and the procedures we will follow when banning an individual from entering our offices. We expect that the regulations will result in a safer environment for our personnel and the public who visit our facilities, while ensuring that our personnel can continue to serve the American people with as little disruption to our operations as possible.

§ 422.902

Definition of personnel for purposes of this subpart.

We will construe the term “personnel” broadly to mean persons responsible for or engaged in carrying out the responsibilities, programs, or services of or on behalf of the agency. Personnel includes, but is not limited to, our employees, contractors, consultants, and examiners and State disability determination services (DDS) employees, contractors, consultants, and examiners.

§ 422.903

Prohibited conduct.

We will ban you from entering our offices if you:

(a) Physically or verbally assault our personnel or a member of the public in our occupied space;

(b) Use force or threats of force against our personnel or offices, including but not limited to communicating threats in person or by phone, facsimile, mail, or electronic mail;

(c) Engage in disruptive conduct that impedes our personnel from performing their duties; or

(d) Engage in disruptive conduct that impedes members of the public from obtaining services from our personnel.

§ 422.904

Notice of the ban.

If an agency manager makes a decision in writing that you pose a threat to the safety of our personnel, visitors, office, or the operational effectiveness of the agency, we will send you a notice banning you from our offices. The notice will contain the following information:

(a) Type of restriction. If we ban you from entering our offices, the ban will apply to all of our offices, and you must obtain all future service through alternate means. We will provide you in-person service only if you establish that there are no alternate means available. You must direct your request for in-person service to the manager of the office you are requesting to visit. If we determine that an office visit is warranted, we will schedule an appointment for you and send you a certified letter notifying you of the date, time, and location of the appointment.

(b) Prohibited conduct. We will provide you with specific details of the prohibited conduct that served as the basis for our decision to ban you.

(c) Alternate means of service. If you are banned from entering our offices, you still have several means to receive services:

(1) You may use the online services available through our Web site at http://www.socialsecurity.gov;​;

(2) You may call your local office. Your notice will include the contact information for your local office. You should ask to speak with the office manager or a supervisor;

(3) You may call our national toll-free number at 1-800-772-1213 between the hours of 7 a.m. and 7 p.m., Monday through Friday. You should not attempt to schedule an in-person appointment through this number. If you are deaf or hard of hearing, you may call our toll-free TTY number at 1-800-325-0778;

(4) You may write to your local office. You should address all correspondence to the attention of the office manager;

(5) With your written consent, another person may call, write, or visit us to conduct business on your behalf.

(d) Appeal rights. The notice will provide you with information on how to appeal the ban.

(e) Periodic request for review of ban decision. The notice will provide you with information on how to request review of the ban determination every three years from the date of the ban notice, or if you appeal the ban, the date of the appeal decision.

§ 422.905

Appeal rights.

You may appeal our decision to ban you. You must submit your appeal in writing to the address identified in the notice within 60 days of the date of the notice. You should identify your name, address, Social Security number, and the office that issued the notice of the ban. The appeal should clearly state why we should reconsider our decision and provide any supporting documentation. We may allow an additional 10 days for the late filing of an appeal if you show good cause for the late filing. The ban will remain in effect while the appeal is pending. We will notify you of our decision in writing.

§ 422.906

Periodic request for review of ban decision.

You may request review of our ban decision every three years. The three-year cycle to request review will begin on the date we issued notice of the ban, or if you appealed, the date of our appeal decision. You must submit your request for review of a ban decision in writing to the address identified in the original notice of the ban. Your request for review should identify your name, address, Social Security number, and office that issued the notice of the ban. Your request should clearly state why we should lift the ban and provide relevant documentation that supports removal of the restriction, including medical documentation, applicable psychiatric evaluations, work history, and any criminal record. You must prove by a preponderance of the evidence (meaning that it is more likely than not) that you no longer pose a threat to the safety of our personnel or visitors or the operational effectiveness of the agency. We will notify you of our decision in writing.

§ 422.907

Posting requirement.

We will post the regulation in this subpart in a conspicuous place in our offices that serve the public.

Footnotes

1.  See Downing v. Kunzig, 454 F.2d 1230, 1232 (6th Cir. 1972) (noting that, “federal buildings housing federal courts and other governmental agencies are designed to be used strictly for governmental purposes. Although members of the public ordinarily have free access to such buildings, * * * responsible agencies are free to adopt and enforce reasonable rules restricting such public use. * * *”); cf. United States v. Cassiagnol, 420 F.2d 868, 875 (4th Cir. 1970) (“Even where government property is generally open to the public, reasonable nondiscriminatory regulation is appropriate to prevent interference with the designated and intended governmental use thereof.”).

2.  See 76 FR 13506.