[Federal Register Volume 70, Number 204 (Monday, October 24, 2005)]
[Rules and Regulations]
[Pages 61364-61366]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21117]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Regulations Nos. 4 and 16]
RIN 0960-AG23


Deemed Duration of Marriage for Widows/Widowers and Removal of 
Restriction on Benefits to Children of Military Parents Overseas

AGENCY: Social Security Administration.

ACTION: Final rules.

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SUMMARY: We are issuing these final rules to reflect in our regulations 
changes to the Social Security Act (the Act) made by two provisions in 
the Social Security Protection Act of 2004 (SSPA), enacted on March 2, 
2004. One provision added a new situation in which the 9-month 
duration-of-marriage requirement for surviving spouses under title II 
of the Act is deemed to have been met. The other provision removed a 
restriction against payment of Supplemental Security Income (SSI) 
benefits, under title XVI of the Act, to certain blind or disabled 
children who were not eligible for SSI benefits the month before their 
military parents reported for duty outside the United States.

DATES: These regulations are effective October 24, 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

    Prior to enactment of section 414 of the SSPA, Public Law 108-203, 
if an applicant for surviving spouse's benefits did not meet the 9-
month duration-of-marriage requirement or alternative requirements, the 
9-month requirement would be deemed to be met if:
     The insured's death was accidental;
     The insured's death occurred in the line of duty while he 
or she was a member of a uniformed service on active duty; or
     The surviving spouse was previously married to the insured 
for at least 9 months, the previous marriage ended in divorce, and the 
surviving spouse had remarried the insured prior to the insured's 
death.
    Section 414 of the SSPA amended sections 216(c) and (g) of the Act 
to add a new situation in which the 9-month duration-of-marriage 
requirement is deemed met. The requirement will be deemed met if:
     The insured had been married prior to the marriage to the 
surviving spouse;
     The prior spouse was institutionalized during the marriage 
to the insured, due to mental incompetence or similar incapacity;
     We determine, based on satisfactory evidence, that during 
this institutionalization the insured would have divorced the prior 
spouse and married the surviving spouse but the divorce would have been 
unlawful in the State of the insured's domicile because of the 
institutionalization;
     The prior spouse remained institutionalized up until the 
time of his or her death; and
     The insured married the surviving spouse within 60 days 
after the prior spouse's death.
    Prior to enactment of section 434 of the SSPA, section 
1614(a)(1)(B)(ii) of the Act included within the definition of a blind 
or disabled individual, for purposes of SSI eligibility and payment 
under title XVI, a blind or disabled child who lived outside the United 
States if the child:
     Was a citizen of the United States;
     Was living with a parent and that parent was a member of 
the Armed Forces of the United States assigned to permanent duty ashore 
outside the United States; and
     Was eligible for an SSI benefit for the month before the 
parent reported for such assignment.
    Section 434 of the SSPA amended section 1614(a)(1)(B)(ii) by 
eliminating the requirement that the child must have been eligible for 
an SSI benefit for the month before the parent reported for the 
military assignment.

Explanation of Changes

    We are revising Sec.  404.335 to extend title II benefits to a 
surviving spouse who would have met the duration-of-marriage 
requirement to the insured, except that as determined based on evidence 
satisfactory to the Agency, it was unlawful under State law for the 
insured to divorce the prior spouse by reason of the prior spouse's 
institutionalization because of mental incompetence or similar 
incapacity. The prior spouse must have been institutionalized during 
the marriage to the insured and remained institutionalized until the 
time of his or her death, and the insured must have married the 
surviving spouse within 60 days after the prior spouse's death. We also 
are revising the last sentence of Sec.  404.357 to update the reference 
to the revised paragraphs in Sec.  404.335 and clarify that this new 
situation where the duration-of-marriage requirement is deemed to have 
been met does not apply to stepchildren.
    We are revising Sec.  416.216 by amending paragraph (a) to include 
a definition of the regulatory term ``overseas.'' The amended paragraph 
(a) clarifies that by overseas we mean ``outside the United States.'' 
We are revising paragraph (a)(3) to substitute the newly defined term 
``overseas'' for ``outside the United States.'' The relevant statutory 
section uses the term ``outside the United States.'' The regulation 
already uses ``overseas'' several times but text we are removing from 
the section includes the term ``outside the United States.'' We are 
removing paragraph (a)(4), which

[[Page 61365]]

contains the requirement that a blind or disabled child who is a United 
States citizen, living with a parent who is a member of the U.S. Armed 
Forces assigned to permanent duty ashore outside the U.S., must have 
been eligible for an SSI benefit for the month before the parent 
reported for the assignment, in order to be eligible for a payment of 
SSI benefits while outside the U.S.

Regulatory Procedures

    Pursuant to sections 205(a), 702(a)(5) and 1631(d)(1) of the Act, 
42 U.S.C. 405(a), 902(a)(5) and 1383(d)(1), we follow the 
Administrative Procedure Act (APA) rulemaking procedures specified in 5 
U.S.C. 553 in the promulgation of our regulations. The APA provides 
exceptions to its prior notice and public comments 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 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. Good cause exists because these regulations merely 
revise our rules on title II widows/widowers benefits and title XVI 
blind or disabled children's benefits to reflect, without exercise of 
discretion, the provisions in sections 414 and 434 of the SSPA that we 
have been following operationally since enactment of the provisions on 
March 2, 2004. 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). As explained above, we are revising our rules on title 
II benefits for widows/widowers and title XVI benefits for blind or 
disabled children to reflect current law. Without these changes, our 
rules will not reflect current law and thus may mislead the public. 
Therefore, we find that it is in the public interest 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 final rules meet the criteria 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 final regulations will not have a significant 
economic impact on a substantial number of small entities. Therefore, a 
regulatory flexibility analysis as provided in the Regulatory 
Flexibility Act, as amended, is not required.

Paperwork Reduction Act

    These final regulations will impose no additional reporting or 
record keeping requirements requiring OMB clearances.

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

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

0
For the reasons set out in the preamble, we amend subpart D of part 404 
and subpart B 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 D--[Amended]

0
1. The authority citation for subpart D of part 404 is revised to read 
as follows:

    Authority: Secs. 202, 203(a) and (b), 205(a), 216, 223, 225, 
228(a)-(e), and 702(a)(5) of the Social Security Act (42 U.S.C. 402, 
403(a) and (b), 405(a), 416, 423, 425, 428(a)-(e), and 902(a)(5)).


0
2. Amend Sec.  404.335 by revising paragraph (a)(2) to read as follows:


Sec.  404.335  How do I become entitled to widow's or widower's 
benefits?

* * * * *
    (a) * * *
    (2) Your relationship to the insured as a wife or husband did not 
last 9 months before the insured died, but you meet one of the 
conditions in paragraphs (a)(2)(i) through (iv) of this section.
    (i) At the time of your marriage the insured was reasonably 
expected to live for 9 months, and the death of the insured was 
accidental. The death is accidental if it was caused by an event that 
the insured did not expect, if it was the result of bodily injuries 
received from violent and external causes, and if, as a direct result 
of these injuries, death occurred not later than 3 months after the day 
on which the bodily injuries were received. An intentional and 
voluntary suicide will not be considered an accidental death.
    (ii) At the time of your marriage the insured was reasonably 
expected to live for 9 months, and the death of the insured occurred in 
the line of duty while he or she was serving on active duty as a member 
of the uniformed services as defined in Sec.  404.1019.
    (iii) At the time of your marriage the insured was reasonably 
expected to live for 9 months, and you had been previously married to 
the insured for at least 9 months.
    (iv) The insured had been married prior to his or her marriage to 
you and the prior spouse was institutionalized during the marriage to 
the insured due to mental incompetence or similar incapacity. During 
the period of the prior spouse's institutionalization, the insured, as 
determined based on evidence satisfactory to the Agency, would have 
divorced the prior spouse and married you, but the insured did not do 
so because the divorce would have been unlawful, by reason of the 
institutionalization, under the laws of the State in which the insured 
was domiciled at the time. Additionally, the prior spouse must have 
remained institutionalized up to the time of his or her death and the 
insured must have married you within 60 days after the prior spouse's 
death.
* * * * *

0
3. Amend Sec.  404.357 by revising the last sentence to read as 
follows:


Sec.  404.357  Who is the insured's stepchild.

    * * * This 9-month requirement will not have to be met if the 
marriage between the insured and your parent lasted less than 9 months 
under one of the conditions described in Sec.  404.335(a)(2)(i)-(iii).

[[Page 61366]]

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

Subpart B--[Amended]

0
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).

0
5. Amend Sec.  416.216 by revising paragraph (a) to read as follows:


Sec.  416.216  You are a child of armed forces personnel living 
overseas.

    (a) General Rule. For purposes of this part, overseas means any 
location outside the United States as defined in Sec.  416.215; i.e., 
the 50 States, the District of Columbia and the Northern Mariana 
Islands. You may be eligible for SSI benefits if you live overseas and 
if--
    (1) You are a child as described in Sec.  416.1856;
    (2) You are a citizen of the United States; and
    (3) You are living with a parent as described in Sec.  416.1881 who 
is a member of the armed forces of the United States assigned to 
permanent duty ashore overseas.
* * * * *
[FR Doc. 05-21117 Filed 10-21-05; 8:45 am]
BILLING CODE 4191-02-P