06-3983. Filing of Applications and Requirements for Widow's and Widower's Benefits

AGENCY:

Social Security Administration.

ACTION:

Final rule.

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 § 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, § 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, § 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 § 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 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 § 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 § 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 § 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 § 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 § 404.630(b). Because the first sentence of § 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 § 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 § 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.

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]

1. The authority citation for subpart D of part 404 continues 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)).

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

§ 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]

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)).

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

§ 404.630

Use of date of written statement as filing date.

* * * * *

(b) * * * If the claimant, the claimant's spouse, or a person described in § 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 § 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.

* * * * *