[Federal Register Volume 76, Number 176 (Monday, September 12, 2011)]
[Rules and Regulations]
[Pages 56107-56109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-23232]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA-2011-0015]
RIN 0960-AH31


Requiring Use of Electronic Services by Certain Claimant 
Representatives

AGENCY: Social Security Administration.

ACTION: Final rules.

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SUMMARY: We are revising our rules to require that claimant 
representatives use our electronic services as they become available on 
matters for which the representatives request direct fee payment. In 
the future, we will publish a notice in the Federal Register when we 
require representatives who request direct fee payment on a matter to 
use our available electronic services. We are also adding the 
requirement to use our available electronic services on matters for 
which the representative requests direct fee payment as an affirmative 
duty in our representative conduct rules. These revisions reflect the 
increased use of technology in representatives' business practices. We 
expect that the use of electronic services will improve our efficiency 
by allowing us to manage our workloads more effectively. These rules do 
not require claimants to use our available electronic services 
directly; they only require their representatives to use the services 
on matters for which the representatives request direct fee payment.

DATES: These final rules are effective on October 12, 2011.

FOR FURTHER INFORMATION CONTACT: Joann S. Anderson, Office of Income 
Security Programs, Social Security Administration, 6401 Security 
Boulevard, Baltimore, MD 21235-6401, (410) 965-6716. 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

    We may issue rules and regulations to administer the Social 
Security Act (Act). 42 U.S.C. 405(a), 902(a)(5), 810(a), and 
1383(d)(1).
    On September 8, 2008, we published a notice of proposed rulemaking 
(NPRM) in the Federal Register entitled Revisions to Rules on 
Representation of Parties, and we gave the public 60 days to comment. 
73 FR 51963.
    In the NPRM, we proposed to add an affirmative duty that would have 
required professional representatives to conduct business with us 
electronically at the times and in the manner that we prescribe. We 
proposed to define a professional representative as ``any attorney, any 
individual other than an attorney, or any entity that holds itself out 
to the public as providing representational services * * * before us, 
regardless of whether the representative charges or collects a fee for 
providing the representational services.'' Proposed sections 404.1703 
and 416.1503. We received several comments that opposed our broad 
definition of professional representative and our proposal that all 
professional representatives must conduct business with us 
electronically at the times and in the manner we prescribe.
    After careful consideration of these comments, we decided to 
require some, and encourage all, representatives to use our electronic 
services as much as possible.
    Therefore, we are adding sections 404.1713 and 416.1513 and 
revising sections 404.1740(b)(4) and 416.1540(b)(4) to require that 
representatives conduct business with us electronically at the times 
and in the manner we prescribe on matters for which they request direct 
fee payment. This means that a representative will be required to use 
our available electronic services in conducting business with us on any 
matter for which he or she has or will request direct fee payment.
    We continue to consider the rest of the regulatory changes we 
proposed in the NPRM, and we may publish additional final rules to 
address them.

Requiring Use of Our Electronic Services

    We employ comprehensive usability testing, which includes inviting 
members of the public to test our electronic services and provide 
feedback, to ensure that our electronic services work well before we 
make them publicly available. Even after we make electronic services 
publicly available, we use customer satisfaction surveys and request 
user feedback to improve them. In accordance with our usual practice, 
we intend to employ usability testing and solicit user feedback for any 
electronic services we may require representatives to use under these 
final rules. Once we determine that we should make a particular 
electronic service publicly available because it works well, we will 
publish a notice in the Federal Register. The notice will contain the 
new requirement(s) and a list of all established electronic service 
requirements.
    If we discover that a representative who has an affirmative duty to 
use the available electronic services is not complying with our rules, 
we may investigate to determine if the representative is purposefully 
violating this duty or attempting to circumvent our rules. We will use 
our existing rules in sections 20 CFR 404.1740-404.1799 and 416.1540-
416.1599 to address potential violations.
    We will not penalize the claimant if the representative disregards 
his or her affirmative duty to use our electronic services. We will not 
reject or delay a claimant's request or process it differently if a 
representative fails to comply with this rule, but we may decide to 
pursue sanctions against the representative in appropriate cases.
    We also proposed to add sections 404.1713 and 416.1513, in addition 
to the affirmative duty in proposed sections 404.1740 and 416.1540. We 
are adopting, with minor changes, only the provisions of sections 
404.1713(a) and 416.1513(a) that we proposed, and we are adopting, with 
minor changes, our proposed affirmative duty in final sections 404.1740 
and 416.1540. We are also making other conforming changes.

[[Page 56108]]

Public Comments

    We published an NPRM in the Federal Register on September 8, 2008, 
and we gave the public 60 days to comment on our proposed rules. 73 FR 
51963. We received comments from 66 individuals and organizations 
during this period. We carefully read and considered each of them. The 
comments are available for public viewing at http://www.regulations.gov.
    The comments we received were detailed and insightful, and they 
were extremely helpful to our deliberations. These final rules contain 
a number of changes from our NPRM and reflect the commenters' 
thoughtful input. Below we discuss and respond to the significant 
comments related to mandating the use of electronic services. We did 
not address some technical comments or comments beyond the NPRM's 
scope. We also did not address comments about the proposed regulatory 
changes that we are still considering and may adopt in future final 
rules.
    Comment: One commenter thought that the Act prohibits us from 
creating separate procedures and appeal rights for represented and 
unrepresented claimants. Another commenter asserted that the 
Constitution's principles of equal protection prohibit us from creating 
different standards for different categories of representatives, such 
as principal representatives and professional representatives.
    Response: We did not propose to create separate procedures and 
appeal rights for represented and unrepresented claimants. Both 
represented and unrepresented claimants retain the right to file their 
own appeals using paper forms.
    These final rules do not violate the equal protection component of 
the Due Process Clause of the Fifth Amendment to the Constitution. The 
final rules do not impose different standards on similarly situated 
representatives or otherwise categorize representatives based on their 
characteristics. We also give representatives the choice whether to 
receive their fees directly from us. On matters for which a 
representative requests direct fee payment, he or she must use certain 
electronic services that we prescribe. Nothing in constitutional 
principles of equal protection is inconsistent with the rules that we 
are adopting here.
    Comment: We received several comments on our proposed definition 
for professional representative. Some commenters found the term vague, 
unnecessary, and confusing.
    Response: We agree with these commenters. We are not adopting our 
proposed rules for professional representatives. Instead, we are 
requiring that representatives use certain electronic services only on 
matters for which they request direct fee payment.
    Comment: A few commenters opposed our electronic services 
requirement for professional representatives because they said some 
representatives do not have full electronic access, proper skills, or 
computer support staff.
    Response: We disagree with these comments. We are not mandating 
that all representatives use our electronic services, but only those 
who request direct fee payment on a matter. When representatives do not 
request direct fee payment on a matter due to ineligibility or personal 
preference, they can continue to use our paper processes and forms.
    Comment: A few commenters asserted that the Regulatory Flexibility 
Act, as amended, requires us to complete a regulatory flexibility 
analysis because we proposed to require certain representatives to use 
electronic services, which could impose costs on small businesses.
    Response: We disagree with these comments. We certify below that 
these final rules will not have a significant economic impact on a 
substantial number of small entities. These final rules give a 
representative the option of continuing to use paper forms and 
submitting them to our field offices when the representative does not 
request direct fee payment. Representatives will decide for themselves 
whether to use our electronic services. Because representatives make 
this decision, we do not require any small business to incur any 
additional costs to do business with us. Therefore, the Regulatory 
Flexibility Act, as amended, does not require us to perform a 
regulatory flexibility analysis.
    Comment: One commenter opposed our proposed affirmative duty that 
required professional representatives to conduct business with us 
electronically at the times and in the manner we prescribe. The 
commenter claimed that some situations may require representatives to 
use paper forms, such as when we experience systems problems. Another 
commenter asked us to explain which due process rights a representative 
would have if we brought a sanction proceeding based on a circumstance 
outside of the representative's control.
    Response: As stated earlier, we will require that representatives 
use our electronic services on matters for which they request direct 
fee payment. We are adopting our proposed affirmative duty for those 
representatives in final sections 404.1740(b)(4) and 416.1540(b)(4), 
and we will monitor the representatives' compliance with it. If we find 
that a representative is not using the required electronic services, or 
if we receive a complaint that a representative is not following our 
rules, we will deal with each complaint on an individual basis. If we 
find that a representative has not used our required electronic 
services, we will provide him or her with an opportunity for a hearing 
before an ALJ, who will decide whether to disqualify or suspend the 
representative.

Regulatory Procedures

Executive Order 12866, as Supplemented by Executive Order 13563

    We 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 supplemented by 
Executive Order 13563. Therefore, OMB reviewed them.

Regulatory Flexibility Act

    We certify that these final rules will not have a significant 
economic impact on a substantial number of small entities. These final 
rules permit representatives to continue using paper forms on matters 
for which the representatives do not request direct fee payment. 
Representatives will make this choice and decide for themselves whether 
to use our electronic services. Because representatives make this 
decision, we are not requiring any small business to incur any 
additional costs to work with us. These final rules do not disadvantage 
small entities or limit their ability to compete with larger 
competitors. Additionally, these final rules do not place significant 
costs on small entities. We anticipate that small entities that decide 
to use our electronic services may find slight cost savings because of 
increased efficiency. Therefore, the Regulatory Flexibility Act, as 
amended, does not require us to perform a regulatory flexibility 
analysis.

Paperwork Reduction Act

    These final rules reference public reporting burdens subject to the 
Paperwork Reduction Act in 20 CFR 404.1713, 404.1740(b)(4), 416.1513, 
and 416.1540(b)(4). In these final rules, we are codifying the 
requirement for

[[Page 56109]]

representatives to conduct business with us electronically at the times 
and in the manner we prescribe on matters for which the representatives 
request direct fee payment. However, we are not yet requiring them to 
use the electronic versions of specific OMB-approved collections. We 
will adjust the burden for affected OMB-approved collections before 
requiring representatives to use the collections' electronic versions.

(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

20 CFR Part 404

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

20 CFR Part 416

    Administrative practice and procedure, Penalties, Reporting and 
recordkeeping requirements, Supplemental Security Income (SSI).

Michael J. Astrue,
Commissioner of Social Security.
    For the reasons set out in the preamble, we are amending 20 CFR 
part 404 subpart R and part 416 subpart O as set forth below:

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

Subpart R--[Amended]

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

    Authority: Secs. 205(a), 206, 702(a)(5), and 1127 of the Social 
Security Act (42 U.S.C. 405(a), 406, 902(a)(5), and 1320a-6).


0
2. Add Sec.  404.1713 to read as follows:


Sec.  404.1713  Mandatory use of electronic services.

    A representative must conduct business with us electronically at 
the times and in the manner we prescribe on matters for which the 
representative requests direct fee payment. (See Sec.  404.1740(b)(4)).


0
3. Amend Sec.  404.1740 by revising the second sentence of paragraph 
(b)(2)(vi) and the second sentence of paragraph (b)(3)(ii), and adding 
paragraph (b)(4), to read as follows:


Sec.  404.1740  Rules of conduct and standards of responsibility for 
representatives.

* * * * *
    (b) * * *
    (2) * * *
    (vi) * * * In Sec. Sec.  404.1560 through 404.1569, we discuss in 
more detail the evidence we need when we consider vocational factors;
    (3) * * *
    (ii) * * * This includes providing prompt and responsive answers to 
our requests for information pertinent to processing of the claim; and
    (4) Conduct business with us electronically at the times and in the 
manner we prescribe on matters for which the representative requests 
direct fee payment. (See Sec.  404.1713).
* * * * *

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

Subpart O--[Amended]

0
4. The authority citation for subpart O of part 416 is revised to read 
as follows:

    Authority: Secs. 702(a)(5), 1127, and 1631(d) of the Social 
Security Act (42 U.S.C. 902(a)(5), 1320a-6, and 1383(d)).


0
5. Add Sec.  416.1513 to read as follows:


Sec.  416.1513  Mandatory use of electronic services.

    A representative must conduct business with us electronically at 
the times and in the manner we prescribe on matters for which the 
representative requests direct fee payment. (See Sec.  416.1540(b)(4)).


0
6. Amend Sec.  416.1540 by revising the second sentence of paragraph 
(b)(2)(vi) and the second sentence of paragraph (b)(3)(ii), and adding 
paragraph (b)(4), to read as follows:


Sec.  416.1540  Rules of conduct and standards of responsibility for 
representatives.

* * * * *
    (b) * * *
    (2) * * *
    (vi) * * * In Sec. Sec.  416.960 through 416.969, we discuss in 
more detail the evidence we need when we consider vocational factors;
    (3) * * *
    (ii) * * * This includes providing prompt and responsive answers to 
our requests for information pertinent to processing of the claim; and
    (4) Conduct business with us electronically at the times and in the 
manner we prescribe on matters for which the representative requests 
direct fee payment. (See Sec.  416.1513).
* * * * *
[FR Doc. 2011-23232 Filed 9-9-11; 8:45 am]
BILLING CODE 4191-02-P