2011-7898. Extension of Sunset Date for Attorney Advisor Program

AGENCY:

Social Security Administration.

ACTION:

Final rule.

SUMMARY:

We are extending for 2 years our rule authorizing attorney advisors to conduct certain prehearing procedures and to issue fully favorable decisions. The current rule will expire on August 10, 2011. In this final rule, we are extending the sunset date to August 9, 2013. We are making no other substantive changes.

DATES:

This final rule is effective May 4, 2011.

FOR FURTHER INFORMATION CONTACT:

Susan Swansiger, Social Security Administration, 5107 Leesburg Pike, Falls Church, VA 22041-3260, 703-605-8500 for information about this final rule. 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 at http://www.gpoaccess.gov/​fr/​index.html.

Background of the Attorney Advisor Program

On August 9, 2007, we issued an interim final rule permitting some attorney advisors to conduct certain prehearing procedures. 72 FR 44763. We instituted this practice to enable us to provide more timely service to the increasing number of applicants for Social Security disability benefits and Supplemental Security Income payments based on disability. We considered the public comments we received on the interim final rule and, on March 3, 2008, issued the rule without change as a final rule. 73 FR 11349. Under this rule, attorney advisors may develop claims and, in appropriate cases, issue fully favorable decisions.

We included in §§ 404.942(g) and 416.1442(g) of the interim final rule a provision that the program would end on August 10, 2009, unless we decided either to terminate the rule earlier or to extend it beyond that date by publication of a final rule in the Federal Register. On July 13, 2009, we published a final rule that extended the sunset date of the program until August 10, 2011. 74 FR 33327.

Explanation of Extension

When we published the final rules reinstating the attorney advisor program in 2008, we discussed a variety of concerns about the program and stated that we intended to closely monitor it and make changes if it did not meet our expectations. 73 FR 11349, 11350, 11351, and 11352. We have been monitoring the program, and it has met our expectations.

The number of requests for hearings has continued to increase significantly in recent years, and we expect that these increases will continue. The attorney advisor program has proven to be an invaluable tool in our efforts to issue favorable decisions timely, decide cases efficiently, and reduce the number of claims pending at the hearing level, while maintaining accuracy in the decision-making process. Accordingly, we have decided to extend the attorney advisor rule for another 2 years, until August 9, 2013. As before, we are reserving the authority to end the program earlier or to extend it by publishing a final rule in the Federal Register. We also are adding additional technical references to §§ 404.942(f)(1) and 416.1442(f)(1) to make clear certain authorities attorney advisors have when they adjudicate claims under the attorney advisor program.

Regulatory Procedures

Justification for Issuing Final Rule Without Notice and Comment

We follow the Administrative Procedure Act (APA) rulemaking procedures specified in 5 U.S.C. 553 when developing regulations. Section 702(a)(5) of the Social Security Act, 42 U.S.C. 902(a)(5). The APA provides exceptions to its notice and public comment procedures when an agency finds there is good cause for dispensing with such procedures because they are impracticable, unnecessary, or contrary to the public interest. We have determined that good cause exists for dispensing with the notice and public comment procedures for this rule. 5 U.S.C. 553(b)(B). Good cause exists because this final rule only extends the sunset date of an existing rule and adds cross-references. It makes no substantive changes to the rule. The current regulations expressly provide that we may extend or terminate this rule. Therefore, we have determined that opportunity for prior comment is unnecessary, and we are issuing this rule as a final rule.

Executive Order 12866 as Supplemented by Executive Order 13563

We consulted with the Office of Management and Budget (OMB) and determined that this final rule does meet the criteria for a significant regulatory action under Executive Order 12866 as supplemented by Executive Order 13563. Thus, OMB reviewed the final rule.

Regulatory Flexibility Act

We certify that this final rule will not have a significant economic impact on a substantial number of small entities as it affects individuals only. Therefore, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act, as amended.

Paperwork Reduction Act

This rule does not create any new or affect any existing collections and, therefore, does not require OMB approval under the Paperwork Reduction Act.

(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; 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; Reporting and recordkeeping requirements; Supplemental Security Income (SSI)

Dated: March 29, 2011.

Michael J. Astrue,

Commissioner of Social Security.

For the reasons stated in the preamble, we are revising subpart J of part 404 and subpart N of part 416 of title 20 of the Code of Federal Regulations as set forth below:

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

Subpart J—[Amended]

1. The authority citation for subpart J of part 404 continues to read as follows:

Authority: Secs. 201(j), 204(f), 205(a)-(b), (d)-(h), and (j), 221, 223(i), 225, and 702(a)(5) of the Social Security Act (42 U.S.C. 401(j), 404(f), 405(a)-(b), (d)-(h), and (j), 421, 423(i), 425, and 902(a)(5)); sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42 U.S.C. 405 note); secs. 5, 6(c)-(e), and 15, Pub. L. 98-460, 98 Stat. 1802 (42 U.S.C. 421 note); sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).

2. In § 404.942, revise paragraphs (f)(1) and (g) to read as follows:

§ 404.942

Prehearing proceedings and decisions by attorney advisors.

* * * * *

(f) * * *

(1) Authorize an attorney advisor to exercise the functions performed by an administrative law judge under §§ 404.1520a, 404.1526, 404.1527, and 404.1546.

* * * * *

(g) Sunset provision. The provisions of this section will no longer be effective on August 9, 2013, unless we terminate them earlier or extend them beyond that date by notice of a final rule in the Federal Register.

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

Subpart N—[Amended]

3. The authority citation for subpart N continues to read as follows:

Authority: Secs. 702(a)(5), 1631, and 1633 of the Social Security Act (42 U.S.C. 902(a)(5), 1383, and 1383b); sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).

4. In § 416.1442, revise paragraphs (f)(1) and (g) to read as follows:

§ 416.1442

Prehearing proceedings and decisions by attorney advisors.

* * * * *

(f) * * *

(1) Authorize an attorney advisor to exercise the functions performed by an administrative law judge under §§ 416.920a, 416.924(g), 416.926, 416.926a(n), 416.927, and 416.946.

* * * * *

(g) Sunset provision. The provisions of this section will no longer be effective on August 9, 2013, unless we terminate them earlier or extend them beyond that date by notice of a final rule in the Federal Register.