[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)]
[Rules and Regulations]
[Pages 24812-24814]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3983]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Part 404

RIN 0960-AG32


Filing of Applications and Requirements for Widow's and Widower's 
Benefits

AGENCY: Social Security Administration.

ACTION: Final rule.

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SUMMARY: We are revising one of our regulations to clarify that we will 
protect a title II claimant's filing date as of the date the claimant 
or other proper applicant on the claimant's behalf completes and 
transmits to the Social Security Administration (SSA) the Personal 
Information Identification data on the Internet Social Security Benefit 
Application (ISBA). This revision addresses an aspect of implementing 
the ISBA to provide certain rights to Internet filers that we afford to 
other filers.
    In addition, we are correcting one word in a different title II 
regulation. The revision is necessary to correctly reflect the 
circumstances under which a claimant for widow's or widower's benefits 
as the insured person's surviving divorced spouse would be considered 
``unmarried.''

DATES: This final rule is effective on April 27, 2006.

FOR FURTHER INFORMATION CONTACT: Lola Doyle, Social Insurance 
Specialist, Office of Income Security Programs, Mary Jayne Neubauer, 
Social Insurance Specialist, Office of Income Security Programs or 
Peter F. White, Social Insurance Specialist, Office of Income Security 
Programs, Social Security Administration, 252 Altmeyer Building, 6401 
Security Boulevard, Baltimore, MD 21235-6401, 410-965-5899 or TTY 1-
800-966-5609, for information about this Federal Register document. 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:

Electronic Version

    The electronic file of this document is available on the date of 
publication in the Federal Register on the Internet site for the 
Government Printing Office at http://www.gpoaccess.gov/fr/index.html.

Background

    Various sections of the Social Security Act (Act) and Sec.  404.603 
of our regulations provide that filing an application with SSA is one 
of the requirements for entitlement to Federal old-age, survivors and 
disability insurance benefits. A valid application may only be signed 
by a proper applicant as defined in our regulations. Section 404.612 of 
our regulations specifies who may sign an application. If the claimant 
becomes entitled to any past-due benefits, we pay the past-due benefits 
in accordance with the Act based upon the filing date of the 
application. We have long recognized, however, that an individual might 
intend to file a claim for benefits but be unable to complete an 
application immediately.
    Accordingly, Sec.  404.630 of our regulations provides that any 
proper applicant may establish an earlier ``protective'' filing date 
based upon that individual's initial contact with us. If all of the 
requirements for a protective filing are satisfied, we will establish 
the date of the initial contact as the protective filing date of the 
application. Among the requirements for preserving the protective 
filing date, Sec.  404.630(c) provides that a proper applicant must 
file a signed application with us within six months of the date we 
notify the claimant or other person listed in Sec.  404.612 about the 
need to file an application. This protective filing date prevents a 
potential loss of any retroactive benefits.
    Our regulations currently do not explain how we determine a 
claimant's application filing date when a proper applicant intends to 
file a benefit claim

[[Page 24813]]

and begins an Internet benefit application, but does not complete and 
file a signed application until a later date. Currently, if a proper 
applicant initially contacts us by telephone about filing an 
application for benefits, our documentation of that contact may 
constitute a protective filing in the event a completed application is 
timely filed after the month of the initial contact. We have decided to 
afford Internet filers protective filing dates like those we afford to 
other filers, and are revising our regulation to reflect this policy. 
Under this final rule, we explain that we will use the date that we 
receive the Personal Identification Information data on the ISBA 
(usually the date that the proper applicant starts the ISBA) as a 
protective filing date. This could prevent a loss of benefits if a 
valid application is timely filed after the month of the initial 
Internet session. The Social Security Web site address for Internet 
filers is: http://www.socialsecurity.gov.
    On a separate matter, the regulation at Sec.  404.336(e)(3) 
implements sections 202(e)(3) and 202(f)(3) of the Act. These statutory 
provisions explain when we must deem a claimant to be unmarried for the 
purpose of entitlement to widow's or widower's benefits as the insured 
surviving divorced spouse under sections 202(e)(1)(A) and 202(f)(1)(A) 
of the Act. Due to a drafting error, the current regulation at Sec.  
404.336(e)(3) incorrectly requires one of the statutorily mandated 
criteria instead of both, as the statute requires. This error was 
inadvertently introduced during a general rewriting of regulations in 
2003, while the correct regulatory language was incorporated in Agency 
regulations before that date. See 68 FR 4700, 4701 (January 30, 2003); 
20 CFR 404.336(e)(3) (1986-2002). We are revising Sec.  404.336(e)(3) 
to correct the word and state:
    You are now at least age 50 but not yet age 60 and you meet both of 
the conditions in paragraphs (e)(3)(i) and (ii) of this section.
    The revised language will correctly reflect the underlying 
statutory authority.

Explanation of Changes

    We are revising Sec.  404.630(b) of our regulations by adding a 
third sentence to state that we will treat the date that a claimant or 
other proper applicant acting on the claimant's behalf completes and 
transmits the Personal Identification Information data on the ISBA to 
us as a protective filing under certain circumstances. This date will 
be treated as a protective filing date provided that a completed 
application is filed within six months after the date we notify the 
claimant about the need to file an application and all other applicable 
requirements are met. In addition, we are revising the second sentence 
in Sec.  404.630(b). Because the first sentence of Sec.  404.630(b) 
discusses who can sign a written statement, we will remove the word 
``you'' from the second sentence to avoid potential confusion about the 
meaning of the second sentence.
    We are amending Sec.  404.336(e)(3) of our regulations because it 
incorrectly states the conditions under which the insured person's 
surviving divorced spouse is deemed ``unmarried'' for purposes of 
entitlement to widow's or widower's benefits. Correcting the unintended 
error will restore the regulation to its longstanding substantive 
statement that reflects pertinent provisions of sections 202(e)(3) and 
202(f)(3) of the Act. The change to Sec.  404.336(e)(3) will require 
surviving divorced spouses to meet both of the conditions in paragraphs 
(e)(3)(i) and (ii) of this section.

Regulatory Procedures

    Pursuant to section 702(a)(5) of the Act, 42 U.S.C. 902(a)(5), we 
follow the Administrative Procedure Act (APA) rulemaking procedures 
specified in 5 U.S.C. 553 in the development of regulations. The APA 
provides exceptions to its notice and public comment procedures when an 
agency finds that there is good cause for dispensing with such 
procedures on the basis that they are impracticable, unnecessary, or 
contrary to the public interest. We have determined that, under 5 
U.S.C. 553(b)(B), good cause exists for dispensing with the notice and 
public comment procedures for this rule. Good cause exists because this 
final rule only makes minor clarifying and corrective regulatory 
changes. We are clarifying in these rules that we are providing 
Internet filers with protective filing dates like those we afford to 
individuals who file by other methods so that the maximum potential 
entitlement benefits may be paid upon any allowance of the claims. In 
addition, we are correcting an inadvertent error in a longstanding 
regulation to reflect non-discretionary aspects of the Social Security 
Act. Seeking prior public comment for the conforming clarification or 
the non-discretionary correction is unnecessary and would be contrary 
to the public interest in the payment of potential benefits as 
authorized by the Social Security Act. Accordingly, we are issuing 
these changes to our regulations as a final rule.
    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 conforming our treatment of 
application filing dates for Internet benefit filers with other benefit 
filers. Also, as explained above, we are revising our rules on title II 
benefits for widows and widowers to reflect current law. Without these 
changes, our rules will not explain our uniform filing policies, 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 the rule does not meet the criteria for a 
significant regulatory action under Executive Order 12866, as amended 
by Executive Order 13258. Thus, it was not reviewed by OMB.

Regulatory Flexibility Act

    We certify that this rule does not have a significant economic 
impact on a substantial number of small entities because it affects 
only individuals. Thus, a regulatory flexibility analysis as provided 
in the Regulatory Flexibility Act, as amended, is not required.

Paperwork Reduction Act

    This rule imposes no additional reporting or recordkeeping 
requirements that requires OMB clearance.

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

    Dated: April 19, 2006.
Jo Anne B. Barnhart,
Commissioner of Social Security.

0
For the reasons set out in the preamble, subparts D and G of part 404 
of chapter III of title 20 of the Code of Federal Regulations are 
amended 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 continues to read 
as follows:


[[Page 24814]]


    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. Section 404.336(e)(3) introductory text is revised to read as 
follows:


Sec.  404.336  How do I become entitled to widow's or widower's 
benefits as a surviving divorced spouse?

* * * * *
    (e) * * *
    (3) You are now at least age 50 but not yet age 60 and you meet 
both of the conditions in paragraphs (e)(3)(i) and (ii) of this 
section:
* * * * *

Subpart G--[Amended]

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

    Authority: Secs. 202(i), (j), (o), (p), and (r), 205(a), 
216(i)(2), 223(b), 228(a), and 702(a)(5) of the Social Security Act 
(42 U.S.C. 402(i), (j), (o), (p), and (r), 405(a), 416(i)(2), 
423(b), 428(a), and 902(a)(5)).

0
4. Amend Sec.  404.630(b) by revising the second sentence of paragraph 
(b) and adding a third sentence to paragraph (b) to read as follows:


Sec.  404.630  Use of date of written statement as filing date.

* * * * *
    (b) * * * If the claimant, the claimant's spouse, or a person 
described in Sec.  404.612 telephones us and advises us of his or her 
intent to file a claim but cannot file an application before the end of 
the month, we will prepare and sign a written statement if it is 
necessary to prevent the loss of benefits. If the claimant, the 
claimant's spouse, or a person described in Sec.  404.612 contacts us 
through the Internet by completing and transmitting the Personal 
Identification Information data on the Internet Social Security Benefit 
Application to us, we will use the date of the transmission as the 
filing date if it is necessary to prevent the loss of benefits.
* * * * *
[FR Doc. 06-3983 Filed 4-26-06; 8:45 am]
BILLING CODE 4191-02-P