[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