SSA Proposed Rule on Fugitive Felons

SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Regulation Nos. 4 and 16]
RIN 0960-AG12


Nonpayment of Benefits to Fugitive Felons and Probation or Parole
Violators

AGENCY: Social Security Administration.

ACTION: Proposed rules.

-----------------------------------------------------------------------

SUMMARY: To implement section 203 of the Social Security Protection Act
of 2004 (SSPA), we propose to revise our regulations on the payment of
Social Security and Supplemental Security Income benefits under titles
II and XVI of the Social Security Act (the Act). Section 203 requires
that title II benefits will not be paid to a person who is a fugitive
felon or probation or parole violator, unless good cause is shown as
specified in this new law. Section 203 also added a good cause
exception to the title XVI fugitive felon ineligibility provision. In
addition, we propose to make other changes in our regulations, required
by this legislation, such as removing the reference to high
misdemeanors in the state of New Jersey. Finally, we propose to clarify
our interpretation of the statutory language ``fleeing to avoid'' for
the purposes of the title II and title XVI provisions.

DATES: To be sure that we consider your comments, we must receive them
by February 3, 2006.

ADDRESSES: You may give us your comments by: Using our Internet site
facility (i.e., Social Security Online) at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://policy.ssa.gov/erm/rules.nsf/Rules+Open+To+Comment
or the Federal eRulemaking Portal at http://www.regulations.gov; e-mail to regulations@ssa.gov; telefax to
lefax to
(410) 966-2830; or letter to the Commissioner of Social Security, P.O.
Box 17703, Baltimore, MD 21235-7703. You may also deliver them to the
Office of Regulations, Social Security Administration, 100 Altmeyer
Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, between 8
a.m. and 4:30 p.m. on regular business days. Comments are posted on our
Internet site, or you may inspect them physically on regular business
days by making arrangements with the contact person shown in this
preamble.

Electronic Version

    The electronic file of this document is available on the date of
publication in the Federal Register at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.gpoaccess.gov/fr/index.html
.


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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.socialsecurity.gov.


SUPPLEMENTARY INFORMATION: The Personal Responsibility and Work
Opportunity Reconciliation Act (PRWORA) of 1996 (Pub. L. 104-193)
provided in section 1611(e)(4) of the Act that a person is ineligible
for payments under title XVI for any month he or she is avoiding
prosecution for a felony, is avoiding confinement for conviction of a
felony, or is violating a condition of probation or parole. Prior to
the enactment of the SSPA (Pub. L. 108-203) on March 2, 2004, section
1611(e)(4) of the Act also provided that

[[Page 72412]]

these provisions apply to high misdemeanors in the State of New Jersey.
Section 203 of the SSPA provides for the nonpayment of title II
benefits to fugitive felons and probation or parole violators, by
amending section 202(x) of the Act. Section 203 also provides a good
cause exception to the nonpayment of title II benefits and adds a good
cause exception to the SSI ineligibility provision. Finally, section
203 removes the reference to New Jersey crimes known as high
misdemeanors. Instead, it provides that, in jurisdictions that do not
define crimes as felonies, a crime that would result in nonpayment of
title II benefits to or SSI ineligibility for fugitive felons and
probation or parole violators is one that is punishable by death or
imprisonment for more than 1 year, regardless of the actual sentence
imposed.

Proposed Changes

    We propose to amend subpart E of part 404 and subparts B and M of
part 416 of chapter III of title 20 of the Code of Federal Regulations
(20 CFR) by adding a new Sec.  404.471 and revising existing Sec. Sec. 
404.401, 416.202 and 416.1339. In Sec.  404.401(d), we propose to add a
new paragraph (d)(5) to the existing list of reasons for the nonpayment
of benefits. The new paragraph would require nonpayment of title II
benefits if a person has an outstanding arrest warrant for prosecution
of a crime (or an attempt to commit a crime) that is a felony, or is
avoiding custody or confinement after conviction for a crime (or an
attempt to commit a crime) that is a felony, or is violating a
condition of Federal or State probation or parole.
    In proposed Sec.  404.471, we explain that we will not pay title II
benefits to fugitive felons and probation or parole violators beginning
in January 2005. We also explain that the nonpayment of benefits under
title II of the Act applies in three situations. First, we will not pay
benefits under title II when the person has an outstanding arrest
warrant if that warrant has been in effect for more than 30 days and
the warrant is for prosecution of a crime (or an attempt to commit a
crime) that is a felony. We will also apply the nonpayment or
ineligibility provisions of section 203 of the SSPA when an outstanding
arrest warrant has been in effect for more than 30 days and the warrant
is issued because a person is avoiding custody or confinement after
conviction for a crime (or an attempt to commit a crime) that is a
felony. Finally, we will apply the nonpayment or ineligibility
provisions of section 203 of the SSPA when a warrant has been in effect
for more than 30 days and the warrant is issued because the person is
violating a condition of Federal or State probation or parole. We also
explain that in jurisdictions that do not define crimes as felonies, we
will apply these provisions if the crime or attempt to commit a crime
is punishable by death or imprisonment for more than 1 year, regardless
of the actual sentence imposed. We base the requirement that the
outstanding arrest warrant must be in effect for more than 30
consecutive days on the statutory 30-day requirement in section 202(x)
of the Act. Section 1611(e)(1) of the Act has no such requirement;
consequently, as we explain below, our corresponding rules for title
XVI cases do not contain this requirement.
    We also propose in Sec. Sec.  404.471 and 416.1339 to establish the
rules that we will apply in administering the mandatory and
discretionary good cause exceptions to nonpayment of title II benefits
or title XVI ineligibility.
    The Act contains both mandatory and discretionary exceptions to the
requirements that we not pay benefits under title II or that we will
find that a person is ineligible under title XVI if he or she is a
fugitive felon or probation or parole violator. Consistent with the
statute, we propose that we will find mandatory good cause to pay title
II benefits or to determine that a person is eligible for SSI, after
January 1, 2005, in two situations. First, we will find good cause at
any time a person can show or when we determine that a court or
equivalent body (such as the United States Parole Commission) of
competent jurisdiction has found the person not guilty of the criminal
offense, has dismissed the underlying charges relating to the criminal
offense, has vacated the warrant for arrest for the criminal offense,
or issued any similar exonerating order or took a similar exonerating
action. In applying the mandatory good cause exception, we recognize
that terms used by courts or an equivalent body to describe actions
taken to dispose of a warrant may vary in different jurisdictions;
e.g., instead of using the word ``vacated'' courts or an equivalent
body may use words such as rescinded, recalled, or quashed. Second, we
will also find good cause at any time a person can show or when we
determine that the person was erroneously implicated in connection with
the criminal offense because someone stole his or her identity, or
because of mistaken identity.
    Section 203 of the SSPA also gives us the discretionary authority
to find good cause based on mitigating circumstances if the person
establishes that the offense underlying the warrant and imposition of
the probation or parole (as well as violating probation or parole) was
both nonviolent and not drug-related. We consider ``violent'' crimes to
be those that threaten, attempt to use, or actually use physical force
against a person; e.g., assault, homicide, kidnapping/abduction,
robbery, and forcible sex offenses. ``Drug-related'' crimes are those
involving the unlawful cultivation, manufacture, distribution, sale,
purchase, use, possession, transportation, or importation of any
controlled drug or narcotic substance. In identifying these violent and
drug-related crimes we will use selected National Crime Information
Center (NCIC) codes, a list of which is published in our operating
instructions.
    In the SSPA's legislative history (149 Cong. Rec. S16180 (daily ed.
Dec. 9, 2003)), Congress explained that we may establish good cause
based on mitigating factors such as the nature and severity of the
crime, the length of time that has passed since the warrant was issued,
whether other crimes have been committed in the interim, and the
beneficiary's mental capacity to resolve the issue. We propose to
incorporate these factors into our regulations that discuss the
discretionary good cause exception. We propose to exercise our
discretion to find good cause to pay benefits based on mitigating
circumstances after January 1, 2005, when the person contacts us within
1 year after he or she receives our title II nonpayment notice or the
title XVI notice of planned action and supplies proof within 90 days of
that contact that all of the following apply:
    The crime or violating the probation or parole which the
warrant is based on was both nonviolent and not drug-related and, if
for violating probation or parole, the original crime(s) was both
nonviolent and not drug-related; and
    The person has neither been convicted of nor pled guilty
to another felony crime since the date of the warrant; and
    The law enforcement agency that issued the warrant reports
that it will not extradite the person for the charges on the warrant or
that it will not take action on the arrest warrant.
    If the first two requirements above apply but not the third, we may
also find good cause if the following two criteria apply:
    The only existing warrant was issued 10 or more years ago;
and
    The person's medical condition impairs his or her mental
capability to resolve the warrant; or he or she is incapable of
managing his or her benefits; or he or she is legally

[[Page 72413]]

incompetent; or we have appointed a representative payee to handle the
benefits; or he or she is residing in a long-term care facility, such
as a nursing home or mental treatment/care facility.
    If the person does not contact us within 1 year after receipt of
the title II notice of nonpayment or title XVI notice of planned
action, we will not find good cause for continuing payments based on
mitigating circumstances. Each time a person contacts us within the 1-
year timeframe with the intent to show good cause based on mitigating
circumstances, the person will have 90 days to supply the necessary
proof. If the evidence is not supplied within 90 days, we will
determine that good cause has not been shown for that request.
    Although Congress explained in SSPA's legislative history (149
Cong. Rec. S16180 (daily ed. Dec. 9, 2003)) that ``the length of time
that has passed since the warrant was issued'' may be a mitigating
factor for establishing good cause, Congress gave no guidance as to how
old the warrant should be in order to be considered a mitigating
circumstance. In determining what age of a warrant we would use as a
mitigating factor, we reviewed certain statutes of limitations for
guidance. For example, there is a 6-year statute of limitations in
sections 1128A(c)(1) and 1129(b)(1) of the Act, beyond which we (or the
Secretary of Health and Human Services under section 1128A(c)(1)) do
not refer cases to the Department of Justice for civil monetary penalty
prosecution. Our review gave us a range of years to consider when
determining the age of a warrant that would be appropriate to consider
as a mitigating factor. Based on our review and our strong commitment
to responsible stewardship of the Social Security Trust Fund and the
General Fund, we decided to take a careful approach and propose 10
years as the age of a warrant that would constitute a mitigating
factor. We may revisit that decision after considering public comments
on these proposed rules. We invite you to comment on our proposed use
of 10 years for ``the length of time that has passed since the warrant
was issued'' and, if you believe a different length of time would be
more appropriate, to provide your rationale for the different length of
time.
    If we find good cause to pay title II and/or title XVI benefits we
will do so, and, if appropriate, repay any benefits previously withheld
for being a fugitive felon beginning with either the month the arrest
warrant was issued, the month of initial title II entitlement or title
XVI eligibility, or January 2005, whichever is later.
    Currently, Sec. Sec.  416.202 and 416.1339 specify that a person is
ineligible for title XVI payments for any month in which he or she is
``fleeing to avoid'' prosecution, or custody or confinement after
conviction for a crime. We propose to clarify how we determine who is a
fugitive felon. In order to clarify this point, we propose to remove
the references to ``fleeing'' in Sec. Sec.  416.202 and 416.1339. We
interpret the statutory term ``fleeing to avoid'' prosecution, or
custody or confinement, to mean that a person has an outstanding
warrant for his or her arrest. It is the responsibility of federal,
state, local, and foreign courts and law enforcement officials to issue
warrants and ensure that they are issued in appropriate circumstances.
Therefore, we propose to determine that a person is a fugitive felon
when an outstanding felony warrant for the person's arrest exists, even
if that person is unaware that an outstanding warrant exists.
    Some courts have found that ``fleeing to avoid prosecution''
requires intent on the part of the person to evade the criminal justice
system. We believe that the law enforcement agencies and courts that
issued the warrant make this intent determination. We rely on the
identification of a person as a fugitive felon by federal, state,
local, or foreign courts and law enforcement officials in part because
we lack the expertise to identify someone as a fugitive within the
context of the criminal justice system. Law enforcement officials have
identified a person as a fugitive when an outstanding arrest warrant
exists. Therefore, we need not make that determination for our program
purpose, i.e., for the purpose of determining whether or not to pay
benefits.
    We believe this position is consistent with one of the intended
results of Congress's actions in section 203 of SSPA and section 202 of
PRWORA; i.e., to encourage persons to resolve outstanding warrants
against them. Further, the legislative history makes clear that a
person should be considered ``fleeing'' if it is reasonable to conclude
that he or she knew or should have known that criminal charges are
pending (148 Cong. Rec. S16181 (daily ed. Dec. 9, 2003). From this, we
do not believe that Congress intended that we be the arbiters of these
disputes concerning whether or not an individual is actually a
fugitive; instead, if a person wishes to challenge a warrant he or she
should deal with the appropriate law enforcement authority to resolve
the matter. The position we take here will encourage persons to do
that.
    Furthermore, interpreting the statute to require us to inquire
into, and possibly adjudicate, the subjective intent of felons runs
counter to one of Congress's, and our, overriding goals: to ensure the
efficient administration of the largest benefits programs in the world,
involving millions of applications and tens of millions of
beneficiaries.
    We also propose to remove from the revised Sec. Sec.  416.202 and
416.1339 the reference to high misdemeanors in New Jersey because the
phrase is obsolete, as recognized by Congress in section 203 of the
SSPA.
    Finally, section 103 of the SSPA disqualifies persons from serving
as representative payees if they are avoiding prosecution for a felony
or are avoiding confinement for conviction of a felony. We are
publishing our proposed rules resulting from section 103 of the SSPA in
a separate notice of proposed rulemaking.

Clarity of These Proposed Rules

    Executive Order 12866, as amended by Executive Order 13258,
requires each agency to write all rules in plain language. In addition
to your substantive comments on these proposed rules, we invite your
comments on how to make these rules easier to understand. For example:
    Have we organized the material to suit your needs?
    Are the requirements in the rules clearly stated?
    Do the rules contain technical language or jargon that
isn't clear?
    Would a different format (grouping and order of sections,
use of headings, paragraphing) make the rules easier to understand?
    Would more (but shorter) sections be better?
    What else could we do to make the rules easier to
understand?

Regulatory Procedures

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.

Regulatory Flexibility Act

    We certify that these proposed regulations will not have a
significant economic impact on a substantial number of small entities
because they affect only individuals. Therefore, a regulatory
flexibility analysis, as provided in the Regulatory Flexibility Act, as
amended, is not required.

[[Page 72414]]

Paperwork Reduction Act

    These proposed rules contain reporting requirements as shown in the
following table.

----------------------------------------------------------------------------------------------------------------
                                                                                  Average burden     Estimated
                     Section                       Annual number   Frequency of    per response    annual burden
                                                   of responses      response        (minutes)        (hours)
----------------------------------------------------------------------------------------------------------------
Sec.   404.471..................................          12,000               1              30           6,000
Sec.   416.1339.................................          12,000               1              30           6,000
                                                 -----------------
    Total.......................................          24,000              --              --          12,000
----------------------------------------------------------------------------------------------------------------

    An Information Collection Request has been submitted to OMB for
clearance. We are soliciting comments on the burden estimate; the need
for the information; its practical utility; ways to enhance its
quality, utility and clarity; and ways to minimize the burden on
respondents, including the use of automated collection techniques or
other forms of information technology. Comments should be faxed to the
Office of Management and Budget at the following number:
    Office of Management and Budget, Attn: Desk Officer for SSA, Fax
Number: 202-395-6974.
    Comments can be received for up to 60 days after publication of
this notice and will be most useful if received within 30 days of
publication. To receive a copy of the OMB clearance package, you may
call the SSA Reports Clearance Officer on 410-965-0454.

(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; 96.006,
Supplemental Security Income.)

List of Subjects

20 CFR Part 404

    Administrative practice and procedure, 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.

    Dated: August 25, 2005.
Jo Anne B. Barnhart,
Commissioner of Social Security.

    For the reasons set out in the preamble, we propose to amend
subpart E of part 404 and subparts B and M of part 416 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]

    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(l), 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(l), 423(e), 424a, 425, 902(a)(5) and 1320a-8a) and 48 U.S.C.
1801.

    2. Amend Sec.  404.401 by adding paragraph (d)(5) to read as
follows:


Sec.  404.401  Deduction, reduction, and nonpayment of monthly benefits
or lump-sum death payments.

* * * * *
    (d) * * *
    (5)(i) The individual has an outstanding arrest warrant for
prosecution of a crime (or an attempt to commit a crime) that is a
felony under the laws of the place that issued the warrant; or
    (ii) The individual has an outstanding arrest warrant for avoiding
custody or confinement after conviction for a crime (or an attempt to
commit a crime) that is a felony under the laws of the place that
issued the warrant; or
    (iii) The individual has an outstanding arrest warrant for
violating a condition of Federal or State probation or parole.
    (iv) In jurisdictions in the United States and abroad that do not
define crimes as felonies, the provisions of paragraph (d)(5) of this
section apply if the crime (or the attempt to commit a crime) is
punishable by death or imprisonment for more than 1 year, regardless of
the actual sentence imposed.
* * * * *
    3. Add Sec.  404.471 to read as follows:


Sec.  404.471  Nonpayment of benefits to fugitive felons and probation
or parole violators.

    (a) Basis for nonpayment. Beginning with the month of January 2005,
we will not pay you a monthly benefit for any month during which you
have an outstanding warrant if that warrant has been in effect for more
than 30 days and the warrant--
    (1) Is for your arrest for a crime (or an attempt to commit a
crime) that is a felony under the laws of the place that issued the
warrant, or in jurisdictions in the United States and abroad that do
not define crimes as felonies, is punishable by death or imprisonment
for a term exceeding 1 year, regardless of the actual sentence imposed,
or
    (2) Is for avoiding custody or confinement after conviction for a
crime (or an attempt to commit a crime) that is a felony under the laws
of the place that issued the warrant, or, in jurisdictions in the
United States and abroad that do not define crimes as felonies, is
punishable by death or imprisonment for a term exceeding 1 year,
regardless of the actual sentence imposed, or
    (3) Is for violating a condition of probation or parole imposed
under Federal or State law.
    (b) Good cause exception to nonpayment. (1) We will not apply the
provisions of paragraph (a) of this section if you contact us at any
time and supply proof within 90 days of the date that you contact us
that:
    (i) A court or equivalent body (such as the United States Parole
Commission) of competent jurisdiction:
    (A) Found you not guilty of the criminal offense which is the basis
for the issuance of the warrant, or
    (B) Dismissed the underlying charges relating to the criminal
offense which is the basis for the issuance of the warrant, or
    (C) Vacated the warrant for your arrest for the criminal offense,
or
    (D) Issued any similar exonerating order or took a similar
exonerating action, or

[[Page 72415]]

    (ii) You were erroneously implicated in connection with the
criminal offense by reason of identity fraud or mistaken identity.
    (2) If none of the criteria in paragraph (b)(1) of this section are
met, we may pay you benefits if you contact us within 1 year of the
date you receive our notice of nonpayment and supply proof within 90
days after the date that you contact us that all of the following
apply:
    (i) The crime, attempt to commit a crime, or violating a condition
of probation or parole which the warrant is based on was both
nonviolent and not drug-related and, if violating probation or parole,
the original crime(s) for which you were paroled or put on probation
was both nonviolent and not drug-related. Violent crimes are those that
threaten, attempt to use, or actually use physical force against a
person; e.g., assault, homicide, kidnapping/abduction, robbery, and
forcible sex offenses. Drug-related crimes are those involving the
unlawful cultivation, manufacture, distribution, sale, purchase, use,
possession, transportation, or importation of any controlled drug or
narcotic substance, and
    (ii) You have neither been convicted of nor pled guilty to another
felony (or, in jurisdictions in the United States and abroad that do
not define crimes as felonies, is punishable by death or imprisonment
for more than 1 year, regardless of the actual sentence imposed) since
the date of the warrant, and
    (iii) The law enforcement agency that issued the warrant reports
that it will not extradite you for the charges on the warrant, or that
it will not take action on the warrant for your arrest.
    (3) If paragraphs (b)(1) and (2) of this section do not apply, we
will pay you benefits if you contact us within 1 year of the date you
receive our notice of nonpayment and supply proof within 90 days after
the date that you contact us that all of the following apply:
    (i) The crime, attempt to commit a crime, or violating a condition
of probation or parole on which the warrant is based was both
nonviolent and not drug-related and, if violating probation or parole,
the original crime(s) for which you were paroled or put on probation
was both nonviolent and not drug-related, as defined in paragraph
(b)(2)(i), and
    (ii) You have neither been convicted of nor pled guilty to another
felony crime (or, in jurisdictions in the United States and abroad that
do not define crimes as felonies, is punishable by death or
imprisonment for more than 1 year, regardless of the actual sentence
imposed) since the date of the warrant, and
    (iii) The warrant was issued 10 or more years ago, and
    (iv) Your medical condition impairs your mental capability to
resolve the warrant; or you are incapable of managing your benefits; or
you are legally incompetent; or we have appointed a representative
payee to handle your benefits; or you are residing in a long-term care
facility, such as a nursing home or mental treatment/care facility.
    (c) Resumption of payments. If benefits are otherwise payable, they
will be resumed effective with the first month throughout which you no
longer have an outstanding warrant, or are no longer violating a
condition of probation or parole. If we determine that you meet the
requirements in paragraph (b) of this section, we will pay you
benefits, and repay any benefits previously withheld under paragraph
(a) of this section, beginning with either the month the arrest warrant
was issued, the month of initial title II entitlement, or January 2005,
whichever is later.

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

Subpart B--[Amended]

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

    Authority: Secs. 702(a)(5), 1110(b), 1602, 1611, 1614, 1619(a),
1631, and 1634 of the Social Security Act (42 U.S.C. 902(a)(5),
1310(b), 1381a, 1382, 1382c, 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).

    5. Amend Sec.  416.202 by revising paragraph (f) to read as
follows:


Sec.  416.202  Who may get SSI benefits.

* * * * *
    (f) You do not have an outstanding warrant for--
    (1) Your arrest for a crime (or an attempt to commit a crime) that
is a felony under the laws of the place that issued the warrant, or in
jurisdictions in the United States and abroad that do not define crimes
as felonies, is punishable by death or imprisonment for a term
exceeding 1 year regardless of the actual sentence imposed, or
    (2) Avoiding custody or confinement after conviction for a crime
(or an attempt to commit a crime) that is a felony under the laws of
the place that issued the warrant, or, in jurisdictions in the United
States and abroad that do not define crimes as felonies, is punishable
by death or imprisonment for a term exceeding 1 year regardless of the
actual sentence imposed, or
    (3) Violating a condition of probation or parole imposed under
Federal or State law.
* * * * *

Subpart M--[Amended]

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

    Authority: Secs. 702(a)(5), 1129A, 1611-1614, 1619, and 1631 of
the Social Security Act (42 U.S.C. 902(a)(5), 1320a-8a, 1382-1382c,
1382h, and 1383).

    7. Revise Sec.  416.1339 to read as follows:


Sec.  416.1339  Suspension of benefits for fugitive felons and
probation or parole violators.

    (a) Basis for suspension. Beginning with the month of August 1996,
you will be ineligible for SSI benefits for any month during which you
have an outstanding warrant if that warrant--
    (1) Is for your arrest for a crime (or an attempt to commit a
crime) that is a felony under the laws of the place that issued the
warrant, or in jurisdictions in the United States and abroad that do
not define crimes as felonies, is punishable by death or imprisonment
for a term exceeding 1 year regardless of the actual sentence imposed,
or
    (2) Is for avoiding custody or confinement after conviction for a
crime (or an attempt to commit a crime) that is a felony under the laws
of the place that issued the warrant, or, in jurisdictions in the
United States and abroad that do not define crimes as felonies, is
punishable by death or imprisonment for a term exceeding 1 year
regardless of the actual sentence imposed, or
    (3) Is for violating a condition of probation or parole imposed
under Federal or State law.
    (b) Good cause exception to ineligibility. Beginning with the month
of January 2005:
    (1) We will not apply the provisions of paragraph (a) of this
section if you contact us at any time and supply proof within 90 days
of the date that you contact us that:
    (i) A court or equivalent body (such as the United States Parole
Commission) of competent jurisdiction:
    (A) Found you not guilty of the criminal offense which is the basis
for the issuance of the warrant, or
    (B) Dismissed the underlying charges relating to the criminal
offense which is the basis for the issuance of the warrant, or

[[Page 72416]]

    (C) Vacated the warrant for your arrest for the criminal offense,
or
    (D) Issued any similar exonerating order or took a similar
exonerating action, or
    (ii) You were erroneously implicated in connection with the
criminal offense by reason of identity fraud or mistaken identity.
    (2) If none of the actions in paragraph (b)(1) of this section are
met, we may find you eligible and pay you benefits if you contact us
within 1 year of the date you receive our notice of planned action and
supply proof within 90 days after the date you contact us that all of
the following apply:
    (i) The crime, attempt to commit a crime, or violating a condition
of probation or parole which the warrant is based on was both
nonviolent and not drug-related and, if violating probation or parole,
the original crime(s) for which you were paroled or put on probation
was both nonviolent and not drug-related. Violent crimes are those that
threaten, attempt to use, or actually use physical force against a
person; e.g., assault, homicide, kidnapping/abduction, robbery, and
forcible sex offenses. Drug-related crimes are those involving the
unlawful cultivation, manufacture, distribution, sale, purchase, use,
possession, transportation, or importation of any controlled drug or
narcotic substance, and
    (ii) You have neither been convicted of nor pled guilty to another
felony crime (or, in jurisdictions in the United States and abroad that
do not define crimes as felonies, is punishable by death or
imprisonment for more than 1 year regardless of the actual sentence
imposed) since the date of the warrant, and
    (iii) The law enforcement agency that issued the warrant reports
that it will not extradite you for the charges on the warrant, or that
it will not take action on the warrant for your arrest.
    (3) If paragraphs (b)(1) and (2) of this section do not apply, we
will find you eligible and pay you benefits if you contact us within 1
year of the date you receive our notice of planned action and supply
proof within 90 days after the date that you contact us that all of the
following apply:
    (i) The crime, attempt to commit a crime, or violating a condition
of probation or parole which the warrant is based on was both
nonviolent and not drug-related and, if violating probation or parole,
the original crime(s) for which you were paroled or put on probation
was both nonviolent and not drug-related, as defined in paragraph
(b)(2)(i) of this section, and
    (ii) You have neither been convicted of nor pled guilty to another
felony crime (or, in jurisdictions in the United States and abroad that
do not define crimes as felonies, is punishable by death or
imprisonment for more than 1 year, regardless of the actual sentence
imposed) since the date of the warrant, and
    (iii) The warrant was issued 10 or more years ago, and
    (iv) Your medical condition impairs your mental capability to
resolve the warrant; or you are incapable of managing your benefits; or
you are legally incompetent; or we have appointed a representative
payee to handle your benefits; or you are residing in a long-term care
facility, such as a nursing home or mental treatment/care facility.
    (c) Resumption of payments. If benefits are otherwise payable, they
will be resumed effective with the first month throughout which you no
longer have an outstanding warrant, or are no longer violating a
condition of probation or parole. If we determine that you meet the
requirements in paragraph (b) of this section, we will pay you benefits
and repay any benefits previously withheld under paragraph (a) of this
section, beginning with either the month the arrest warrant was issued,
the month of initial title XVI eligibility, or January 2005, whichever
is later.
[FR Doc. 05-23618 Filed 12-2-05; 8:45 am]

BILLING CODE 4191-02-P