Temporary Extension of Attorney Fee Payment System to Title XVI; 5-Year Demonstration Project Extending Fee Withholding and Payment Procedures to Eligible Non-Attorney Representatives; Definition of Past-Due Benefits; and Assessment for Fee Payment Services, 44765-44768 [E7-15242]
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Federal Register / Vol. 72, No. 153 / Thursday, August 9, 2007 / Rules and Regulations
amended. Thus, it was reviewed by
OMB.
Regulatory Flexibility Act
We certify that this interim final rule
will not have a significant economic
impact on a substantial number of small
entities as it affects only States and
individuals. Therefore, a regulatory
flexibility analysis as provided in the
Regulatory Flexibility Act, as amended,
is not required.
Paperwork Reduction Act
This rule will impose no additional
reporting or recordkeeping requirements
requiring OMB clearance.
Federalism Impact and Unfunded
Mandates Impact
We have reviewed this rule under the
threshold criteria of Executive Order
13132 and the Unfunded Mandates
Reform Act and have determined that it
does not have substantial direct effects
on the States, on the relationship
between the national government and
the States, on the distribution of power
and responsibilities among the various
levels of government, or on imposing
any costs on State, local, or tribal
governments. This rule does not affect
the roles of the State, local, or tribal
governments. However, the rule takes
administrative notice of existing statutes
governing the roles and relationships of
the State agencies and SSA with respect
to disability determinations under the
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.)
jlentini on PROD1PC65 with RULES
Dated: May 22, 2007.
Michael J. Astrue,
Commissioner of Social Security.
For the reasons set out in the
preamble, we are amending subpart J
part 404 and subpart N of part 416 as
set forth below:
I
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SOCIAL SECURITY ADMINISTRATION
Subpart J—[Amended].
[Docket No. SSA 2006–0097]
1. The authority citation for subpart J
of part 404 continues to read as follows:
I
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. Amend § 404.942 by revising the
first sentence of paragraph (a) and
paragraph (g) to read as follows:
I
§ 404.942 Prehearing proceedings and
decisions by attorney advisors.
(a) General. After a hearing is
requested but before it is held, an
attorney advisor may conduct
prehearing proceedings as set out in
paragraph (c) of this section. * * *
*
*
*
*
*
(g) Sunset provision. The provisions
of this section will no longer be effective
on August 10, 2009, 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
3. The authority citation for subpart N
continues to read as follows:
I
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; Aged, Blind, Disability
benefits, Public assistance programs,
Reporting and recordkeeping
requirements; Supplemental Security
Income (SSI).
PART 404—FEDERAL OLD-AGE,
SURVIVORS AND DISABILITY
INSURANCE (1950– )
Subpart N—[Amended]
List of Subjects
44765
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. Amend § 416.1442 by revising the
first sentence of paragraph (a) and
paragraph (g) to read as follows:
I
§ 416.1442 Prehearing proceedings and
decisions by attorney advisors.
(a) General. After a hearing is
requested but before it is held, an
attorney advisor may conduct
prehearing proceedings as set out in
paragraph (c) of this section. * * *
*
*
*
*
*
(g) Sunset provision. The provisions
of this section will no longer be effective
on August 10, 2009, unless we terminate
them earlier or extend them beyond that
date by notice of a final rule in the
Federal Register.
[FR Doc. E7–15422 Filed 8–8–07; 8:45 am]
BILLING CODE 4191–02–P
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20 CFR Parts 404 and 416
RIN 0960–AG35
Temporary Extension of Attorney Fee
Payment System to Title XVI; 5-Year
Demonstration Project Extending Fee
Withholding and Payment Procedures
to Eligible Non-Attorney
Representatives; Definition of PastDue Benefits; and Assessment for Fee
Payment Services
Social Security Administration.
Final rules.
AGENCY:
ACTION:
SUMMARY: We are issuing these final
rules to adopt without change the
interim final rules published on April 5,
2007 to reflect in our regulations three
self-implementing statutory provisions
in the Social Security Protection Act of
2004 (SSPA) and three related selfimplementing provisions in earlier
legislation. These earlier provisions are
in the Omnibus Budget Reconciliation
Act of 1990 (OBRA), the Social Security
Independence and Program
Improvements Act of 1994 (SSIPIA), and
the Ticket to Work and Work Incentives
Improvement Act of 1999 (TWWIIA).
DATES: The interim rule published on
April 5, 2007, is confirmed as final
effective August 9, 2007.
FOR FURTHER INFORMATION CONTACT:
Marg Handel, Supervisory Social
Insurance Specialist, Office of Income
Security Programs, Social Security
Administration, 239 Altmeyer Building,
6401 Security Boulevard, Baltimore, MD
21235–6401, (410) 965–4639. 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 https://
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 https://
www.gpoaccess.gov/fr/.
Background
Sections 206(a) and 1631(d) of the
Social Security Act (Act) direct the
Commissioner of Social Security
(Commissioner) to determine the
maximum fees representatives may
charge claimants for services that they
perform in claims before the Social
Security Administration (SSA) under
title II or title XVI of the Act. For claims
under title II in which the claimant is
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Federal Register / Vol. 72, No. 153 / Thursday, August 9, 2007 / Rules and Regulations
found entitled to past-due benefits,
section 206 of the Act further authorizes
the Commissioner to pay attorneys’ fees,
approved by the Commissioner or by a
Federal court, out of a portion of the
past-due benefits in the case. Prior to
enactment of the SSPA (Pub. L. 108–
203), we were not authorized to
withhold and pay fees approved for
attorneys in title XVI cases or for nonattorney representatives in cases under
either title of the Act.
jlentini on PROD1PC65 with RULES
Direct Payment of Attorneys’ Fees in
Title XVI
Section 302 of the SSPA amended
section 1631(d)(2) of the Act to extend
the attorney fee withholding and direct
payment procedures to claims under
title XVI of the Act. The amendments
made by section 302 apply with respect
to attorney fees that were first required
to be paid from title XVI past-due
benefits on or after February 28, 2005,
and we began paying fees directly to
attorneys in cases effectuated on or after
that date. Section 302 includes a sunset
provision. Under that provision, the
amendments made by section 302 will
not apply to claims for benefits with
respect to which the claimant and the
representative enter into the agreement
for representation after February 28,
2010.
Direct Payment of Fees to Eligible NonAttorney Representatives
Section 303 of the SSPA directs the
Commissioner to carry out a 5-year
nationwide demonstration project to
determine the potential results of
extending the fee withholding and
direct payment procedures that apply to
attorneys under titles II and XVI of the
Act, to non-attorney representatives
who meet certain minimum
prerequisites specified in section 303
and any additional prerequisites that the
Commissioner may prescribe. Under the
prerequisites specified in section 303,
individuals applying to participate in
the demonstration project must have a
bachelor’s degree or equivalent
education, possess liability insurance or
equivalent insurance adequate to protect
claimants in the event of malpractice by
the representative, pass a criminal
background check ensuring fitness to
practice before SSA, pass an
examination testing knowledge of the
relevant provisions of the Act and the
most recent developments in Agency
and court decisions, and demonstrate
ongoing completion of qualified
continuing education courses. In
addition, the Commissioner has
required that individuals applying to
participate in the demonstration project
show that they have sufficient prior
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experience representing claimants
before SSA. More detailed information
about these prerequisites may be found
in the Federal Register notices
published at the start of the
demonstration project in 2005 (70 FR
2447, January 13, 2005; 70 FR 14490,
March 22, 2005; and 70 FR 41250, July
18, 2005).
The 5-year demonstration project on
direct payment of fees to eligible nonattorneys under section 303 of the SSPA
commenced on February 28, 2005. We
began making direct payment to nonattorneys under the demonstration
project on July 28, 2005, the date on
which we determined that the initial
group of applicants had satisfied the
prerequisites for participation in the
project. The demonstration project
established by SSPA section 303 applies
to claims for benefits with respect to
which the agreement for representation
is entered into after February 27, 2005,
and before March 1, 2010. In these final
rules, we are amending our regulations
to reflect the fact that non-attorney
representatives participating in the
demonstration project may have their
approved fees withheld from their
clients’ past-due benefits and paid
directly to them.
Definition of ‘‘Past-Due Benefits’’
The amount of ‘‘past-due benefits’’ is
important in calculating the fees of
representatives and in determining the
maximum amount we can pay directly
for representation. Since we last defined
the term ‘‘past-due benefits’’ in our
regulations, there have been several
legislative enactments that affect the
definition of past-due benefits. In
section 5106 of the OBRA (Pub. L. 101–
508), section 321(f) of the SSIPIA (Pub.
L. 103–296), and section 302 of the
SSPA, the Act was amended to exclude
from past-due benefits any continued
benefits paid pursuant to § 404.1597a of
part 404, any interim benefits paid
pursuant to section 223(h) of the Act,
any continued benefits paid pursuant to
§ 416.996 of part 416, any continued
benefits paid pursuant to § 416.1336(b)
of part 416, and any interim benefits
paid pursuant to section 1631(a)(8) of
the Act; to specify how a reduction
under section 1127 of the Act (for
receipt of benefits for the same period
under both title II and title XVI) affects
the past-due benefit computation; and to
address the effect of interim assistance
reimbursement payments. We are
amending our regulations to reflect
these statutory changes.
Assessment on Direct Payment of Fees
Section 406 of the TWWIIA (Pub. L.
106–170) amended section 206 of the
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Act by adding section 206(d), which
imposed an assessment on attorneys for
the services we provide in determining
and paying fees directly to attorneys
from the benefits due claimants under
title II of the Act. When that provision
took effect on February 1, 2000, the
amount of the assessment was 6.3
percent of the direct payment amount,
with a provision allowing the
Commissioner to determine for future
years the percentage (not to exceed 6.3
percent) necessary to achieve full
recovery of the costs of determining and
paying fees to attorneys. Effective
September 1, 2004, section 301 of the
SSPA revised section 206(d) to cap the
assessment at the lesser of the amount
calculated using the percentage rate
determined by the Commissioner or
$75, and to provide for annual
adjustment of the $75 cap based on the
cost-of-living computation in section
215(i)(2)(A)(ii) of the Act. Sections 302
and 303 of the SSPA extended this
assessment to the direct payment of fees
to attorneys under title XVI and to the
direct payment of fees to non-attorney
representatives participating in the
demonstration project authorized by
section 303.
Explanation of Changes
We are amending our regulations on
representation in 20 CFR parts 404 and
416 to reflect the legislative changes to
sections 206, 1127 and 1631(d) of the
Act that were enacted under section
5106 of OBRA, section 321(f) of the
SSIPIA, section 406 of the TWWIIA, and
sections 301 and 302 of the SSPA. In
addition, we are revising the regulations
to reflect the provisions of section 303
of the SSPA. We are making only those
substantive changes necessary to
conform our regulations to these
currently applicable statutory
provisions. In these changes we are:
• Amending § 404.1703 to revise the
definition of ‘‘past-due benefits’’ to
explain that we determine past-due
benefits before any applicable reduction
for receipt of benefits for the same
period under title XVI and that past-due
benefits do not include continued
payment of disability benefits during
appeal or interim benefits in cases of
delayed final decision.
• Adding to § 416.1503 the definition
of ‘‘past-due benefits’’ for title XVI
benefits to explain that when we
determine the amount of past-due
benefits, we subtract the amount of any
reduction under section 1127 for the
concurrent receipt of benefits for the
same period under both title II and title
XVI, regardless of whether the actual
reduction was applied to the title II
benefits or to the title XVI benefits, and
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09AUR1
jlentini on PROD1PC65 with RULES
Federal Register / Vol. 72, No. 153 / Thursday, August 9, 2007 / Rules and Regulations
that past-due benefits do not include
continued benefits or interim benefits.
• Adding new §§ 404.1717 and
416.1517 to reflect the demonstration
project extending benefit withholding
and direct fee payment to non-attorneys
under title II and title XVI. These
sections also define ‘‘eligible to
participate in the direct payment
demonstration project’’ and describe the
claims to which the demonstration
project applies.
• Amending § 404.1720 to revise
paragraph (b)(4) to provide that we
make direct fee payments from title II
past-due benefits both to attorneys and
to non-attorney representatives eligible
to participate in the direct payment
demonstration project, and that we
assume no responsibility for the
payment of any fee that we have
authorized to a non-attorney if the
representative is not eligible to
participate in the demonstration project.
We are also revising paragraph (c)(3) to
provide that our notice of a fee
determination will state whether we are
responsible for paying the
representative’s fee from past-due
benefits.
• Amending § 416.1520 to add a new
paragraph (b)(4) stating that we make
direct payment of fees from past-due
benefits under title XVI to attorneys and
to non-attorneys eligible to participate
in the direct payment demonstration
project, and that we assume no
responsibility for the payment of any fee
that we have authorized to a nonattorney if the representative is not
eligible to participate in the
demonstration project. We are revising
paragraph (c)(3) to state that our notice
of fee determination will state whether
we are responsible for paying the fee,
rather than that we are not responsible
for paying the fee. We are also revising
paragraph (d)(3) to state that we assume
no responsibility for fee payment based
on a revised determination if the
representative does not file the request
for administrative review timely.
• Revising § 416.1528 to place the
existing text in a newly designated
paragraph (a) having the heading,
‘‘Representation of a party in court
proceedings’’ and to add a new
paragraph (b) that has the heading
‘‘Attorney fee allowed by a Federal
court.’’ Paragraph (b) states that the
court may allow a reasonable fee to an
attorney as part of its favorable
judgment in a proceeding under title
XVI of the Act and that we may pay the
attorney the amount of the fee out of,
but not in addition to, the amount of the
past-due benefits payable to the
claimant by reason of the court
judgment.
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17:01 Aug 08, 2007
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• Amending § 404.1730 to insert a
previously omitted ‘‘the’’ in paragraph
(a), to add a cross-reference to the
definition of ‘‘past-due benefits’’ in
§ 404.1703, and to reflect in paragraphs
(b) and (c) the extension of the direct
payment of fees from past-due benefits
under title II to non-attorneys eligible to
participate in the direct payment
demonstration project. We are also
adding a new paragraph (d) to reflect
that we impose an assessment on the
representative when we pay a fee
directly to the representative; to explain
how we calculate the assessment; and to
state that the representative may not,
directly or indirectly, request or
otherwise obtain reimbursement of the
amount of the assessment from the
claimant.
• Adding new § 416.1530 to state that
direct payment of fees under title XVI
extends to attorneys for fees we
authorize and for fees a Federal court
allows, and extends to non-attorneys
eligible to participate in the direct
payment demonstration project for fees
we authorize. This section also
describes the maximum amount we will
pay to the representative; shows that we
impose an assessment on the
representative when we pay a fee
directly to the representative; explains
how we calculate the assessment; and
states that the representative may not,
directly or indirectly, request or
otherwise obtain reimbursement of the
amount of the assessment from the
claimant.
In addition to these substantive
changes, we are revising
§§ 404.1720(b)(4) and 404.1730(a), (b)
and (c) to refer to the person claiming
a right under the old-age, disability,
dependents’, or survivors’ benefits
program in the second person, and thus
make the language in these sections
consistent with the use of the second
person throughout the regulations.
Interim Final Rule
On April 5, 2007 (72 FR 16720), we
published interim final rules with
request for comments. The interim final
rules were effective on that date. We
received no public comments on the
interim final rules. Thus, we are
adopting them without change.
Regulatory Procedures
Executive Order 12866, as amended
The Office of Management and Budget
(OMB) earlier determined that the
interim final rules we published on
April 5, 2007, met the criteria for a
significant regulatory action under
Executive Order 12866, as amended.
Accordingly, those interim final rules
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44767
were subject to OMB review. Because
these final rules merely adopt the
provisions of the earlier interim final
rules without change, however, OMB
determined that it did not need to
review these rules again. We also have
determined that these rules meet the
plain language requirement of Executive
Order 12866, as amended.
Regulatory Flexibility Act
We certify that these final rules will
not have a significant economic impact
on a substantial number of small
entities. Also, these final rules simply
reflect legislation already in effect.
Therefore, a regulatory flexibility
analysis as provided in the Regulatory
Flexibility Act, as amended, is not
required.
Paperwork Reduction Act
The Paperwork Reduction Act (PRA)
of 1995 says that no persons are
required to respond to a collection of
information unless it displays a valid
OMB control number. In accordance
with the PRA, SSA is providing notice
that OMB has approved the information
collection requirements contained in
§§ 404.1717, 404.1730(c)(1),
404.1730(c)(2)(i), 404.1730(c)(2)(ii),
416.1517, 416.1528(a), 416.1530(c)(1),
416.1530(c)(2)(i), and 416.1530(c)(2)(ii)
of these final rules. The OMB Control
Number for this (these) collection(s) is
0960–0745, expiring 06/30/2010.
(Catalog of Federal Domestic Assistance
Program Nos. 96.001, Social SecurityDisability Insurance; 96.002, Social SecurityRetirement 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, Reporting and recordkeeping
requirements, Social Security.
20 CFR Part 416
Administrative practice and
procedure, Aged, Blind, Disability
benefits, Public assistance programs,
Reporting and recordkeeping
requirements, Supplemental Security
Income.
Dated: July 31, 2007.
Michael J. Astrue,
Commissioner of Social Security.
Accordingly, the interim final rules
amending subpart R of part 404 and
subpart O of part 416 of chapter III of
title 20 of the Code of Federal
Regulations, which were published at
I
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72 FR 16720 on April 5, 2007, are
adopted as final rules without change.
Division, Financial Crimes Enforcement
Network, (800) 949–2732.
[FR Doc. E7–15242 Filed 8–8–07; 8:45 am]
SUPPLEMENTARY INFORMATION
BILLING CODE 4191–02–P
I. Background
Section 312 of the USA PATRIOT Act
amended the Bank Secrecy Act 1 to add
new subsection (i) to 31 U.S.C. 5318.
This provision requires each U.S.
financial institution that establishes,
maintains, administers, or manages a
correspondent account or a private
banking account in the United States for
a non-U.S. person to subject such
accounts to certain anti-money
laundering measures. In particular, a
covered financial institution 2 must
establish appropriate, specific and,
where necessary, enhanced due
diligence policies, procedures, and
controls that are reasonably designed to
enable the financial institution to detect
and report instances of money
laundering through these accounts.
On May 30, 2002, we published a
notice of proposed rulemaking in the
Federal Register, proposing to
implement the requirements of section
312 in their entirety.3 In that proposal,
we set forth a series of specific measures
that covered financial institutions
could, and in some instances would be
required to, apply to correspondent
accounts and private banking accounts
established or maintained for non-U.S.
persons. We received comments on that
proposal raising concerns about the
definitions in the proposal, the scope of
the requirements contained in the
proposed rule text, and the types of
financial institutions that would be
subject to the proposal’s requirements.
To have adequate time to review the
comments we received in response to
the proposal, to determine the
appropriate resolution of the issues
raised, and to give direction to financial
institutions that would be subject to
section 312,4 we issued an interim final
rule on July 23, 2002.5 In the interim
final rule, we exercised our authority
under 31 U.S.C. 5318(a)(6) to defer
temporarily the application of section
DEPARTMENT OF THE TREASURY
31 CFR Part 103
RIN 1506–AA29
Financial Crimes Enforcement
Network; Anti-Money Laundering
Programs; Special Due Diligence
Programs for Certain Foreign
Accounts
Financial Crimes Enforcement
Network, Treasury.
ACTION: Final rule.
AGENCY:
SUMMARY: The Financial Crimes
Enforcement Network is issuing this
final rule to implement the enhanced
due diligence requirements for
correspondent accounts for certain
foreign banks set forth in section 312 of
the Uniting and Strengthening America
by Providing Appropriate Tools
Required to Intercept and Obstruct
Terrorism Act of 2001 (USA PATRIOT
Act), Pub. L. No. 107–56. Section 312
requires U.S. financial institutions to
establish due diligence and, where
necessary, enhanced due diligence,
policies, procedures, and controls
reasonably designed to detect and report
money laundering through
correspondent accounts and private
banking accounts established or
maintained by U.S. financial
institutions for non-U.S. persons. We
issued final rules implementing the due
diligence requirements for
correspondent accounts and the due
diligence and enhanced due diligence
requirements for private banking
accounts for non-U.S. persons on
January 4, 2006. This final rule
completes the section 312 rulemaking
process.
This final rule is effective
September 10, 2007.
Applicability Dates: On February 5,
2008, the enhanced due diligence
provisions of this final rule will apply
to correspondent accounts for certain
foreign banks established on or after
such date. On May 5, 2008, the
enhanced due diligence provisions of
this final rule will apply to
correspondent accounts for certain
foreign banks established before
February 5, 2008. See 31 CFR 103.176(f)
of this final rule.
FOR FURTHER INFORMATION CONTACT:
Regulatory Policy and Programs
jlentini on PROD1PC65 with RULES
DATES:
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1 Bank Secrecy Act, Pub. L. No. 91–508 (codified
as amended at 12 U.S.C. 1829b, 12 U.S.C. 1951–
1959, and 31 U.S.C. 5311–5314 and 5316–5332).
2 31 CFR 103.175(f) (defining a ‘‘covered financial
institution’’ as any one of a number of specific U.S.
financial institutions, including banks, brokerdealers, futures commission merchants, and mutual
funds).
3 Due Diligence Anti-Money Laundering Programs
for Certain Foreign Accounts, 67 FR 37736 (May 30,
2002) (First Proposed Rule).
4 Section 312(b)(2) of the Act provides that
section 5318(i) of the Bank Secrecy Act would take
effect on July 23, 2002, whether or not final rules
had been issued by that date.
5 Due Diligence Anti-Money Laundering Programs
for Certain Foreign Accounts, 67 FR 48348 (July 23,
2002).
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312 to certain financial institutions.6
For those financial institutions that
were not subject to the deferral,7 we
provided interim guidance for
compliance with the statute by generally
describing the scope of coverage, duties,
and obligations under that provision,
pending issuance of a final rule.
Thereafter, on January 4, 2006, we
issued final rules implementing section
312, excepting the enhanced due
diligence provisions for correspondent
accounts established or maintained for
certain foreign banks.8 Also on January
4, we published a second notice of
proposed rulemaking (Second Proposed
Rule or proposed rule),9 seeking
comment on a new approach to
implementing the enhanced due
diligence provisions of section 312 with
respect to correspondent accounts
established or maintained for certain
statutorily designated foreign banks
(‘‘respondent banks’’).10
As required by section 312, the
enhanced due diligence measures
proposed would apply to correspondent
accounts maintained for a foreign bank
operating under an offshore banking
license,11 under a license issued by a
country that has been designated as
being non-cooperative with
international anti-money laundering
principles or procedures by an
intergovernmental group or organization
of which the United States is a member
and with which designation the United
States representative to the group or
organization concurs,12 or under a
license issued by a country designated
by the Secretary of the Treasury
6 Pursuant to the interim final rule, banks, savings
associations, and credit unions had to comply with
the correspondent account and private banking
account provisions of section 312. Securities
broker-dealers, futures commission merchants, and
introducing brokers had to comply with the private
banking account provisions of section 312. We
deferred the application of section 312 to all other
financial institutions.
7 See id.
8 Anti-Money Laundering Programs; Special Due
Diligence for Certain Foreign Accounts, 71 FR 496
(January 4, 2006).
9 Anti-Money Laundering Programs; Special Due
Diligence for Certain Foreign Accounts, 71 FR 516
(January 4, 2006).
10 Section 312 contains enhanced due diligence
provisions for both correspondent accounts and
private banking accounts for non-U.S. persons.
Unless otherwise provided in this release, the term
‘‘enhanced due diligence provisions’’ relates
exclusively to the correspondent account provisions
of section 312.
11 See 31 U.S.C. 5318(i)(4)(A) and 31 CFR
103.175(k) (defining ‘‘offshore banking license’’).
12 The Financial Action Task Force (FATF) is the
only intergovernmental organization of which the
United States is a member that has designated
countries as non-cooperative with international
anti-money laundering principles (no such
countries currently are designated). The United
States has concurred with all FATF designations to
date.
E:\FR\FM\09AUR1.SGM
09AUR1
]]>Agencies
[Federal Register Volume 72, Number 153 (Thursday, August 9, 2007)]
[Rules and Regulations]
[Pages 44765-44768]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-15242]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
[Docket No. SSA 2006-0097]
RIN 0960-AG35
Temporary Extension of Attorney Fee Payment System to Title XVI;
5-Year Demonstration Project Extending Fee Withholding and Payment
Procedures to Eligible Non-Attorney Representatives; Definition of
Past-Due Benefits; and Assessment for Fee Payment Services
AGENCY: Social Security Administration.
ACTION: Final rules.
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SUMMARY: We are issuing these final rules to adopt without change the
interim final rules published on April 5, 2007 to reflect in our
regulations three self-implementing statutory provisions in the Social
Security Protection Act of 2004 (SSPA) and three related self-
implementing provisions in earlier legislation. These earlier
provisions are in the Omnibus Budget Reconciliation Act of 1990 (OBRA),
the Social Security Independence and Program Improvements Act of 1994
(SSIPIA), and the Ticket to Work and Work Incentives Improvement Act of
1999 (TWWIIA).
DATES: The interim rule published on April 5, 2007, is confirmed as
final effective August 9, 2007.
FOR FURTHER INFORMATION CONTACT: Marg Handel, Supervisory Social
Insurance Specialist, Office of Income Security Programs, Social
Security Administration, 239 Altmeyer Building, 6401 Security
Boulevard, Baltimore, MD 21235-6401, (410) 965-4639. 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 https://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 https://www.gpoaccess.gov/fr/
index.html.
Background
Sections 206(a) and 1631(d) of the Social Security Act (Act) direct
the Commissioner of Social Security (Commissioner) to determine the
maximum fees representatives may charge claimants for services that
they perform in claims before the Social Security Administration (SSA)
under title II or title XVI of the Act. For claims under title II in
which the claimant is
[[Page 44766]]
found entitled to past-due benefits, section 206 of the Act further
authorizes the Commissioner to pay attorneys' fees, approved by the
Commissioner or by a Federal court, out of a portion of the past-due
benefits in the case. Prior to enactment of the SSPA (Pub. L. 108-203),
we were not authorized to withhold and pay fees approved for attorneys
in title XVI cases or for non-attorney representatives in cases under
either title of the Act.
Direct Payment of Attorneys' Fees in Title XVI
Section 302 of the SSPA amended section 1631(d)(2) of the Act to
extend the attorney fee withholding and direct payment procedures to
claims under title XVI of the Act. The amendments made by section 302
apply with respect to attorney fees that were first required to be paid
from title XVI past-due benefits on or after February 28, 2005, and we
began paying fees directly to attorneys in cases effectuated on or
after that date. Section 302 includes a sunset provision. Under that
provision, the amendments made by section 302 will not apply to claims
for benefits with respect to which the claimant and the representative
enter into the agreement for representation after February 28, 2010.
Direct Payment of Fees to Eligible Non-Attorney Representatives
Section 303 of the SSPA directs the Commissioner to carry out a 5-
year nationwide demonstration project to determine the potential
results of extending the fee withholding and direct payment procedures
that apply to attorneys under titles II and XVI of the Act, to non-
attorney representatives who meet certain minimum prerequisites
specified in section 303 and any additional prerequisites that the
Commissioner may prescribe. Under the prerequisites specified in
section 303, individuals applying to participate in the demonstration
project must have a bachelor's degree or equivalent education, possess
liability insurance or equivalent insurance adequate to protect
claimants in the event of malpractice by the representative, pass a
criminal background check ensuring fitness to practice before SSA, pass
an examination testing knowledge of the relevant provisions of the Act
and the most recent developments in Agency and court decisions, and
demonstrate ongoing completion of qualified continuing education
courses. In addition, the Commissioner has required that individuals
applying to participate in the demonstration project show that they
have sufficient prior experience representing claimants before SSA.
More detailed information about these prerequisites may be found in the
Federal Register notices published at the start of the demonstration
project in 2005 (70 FR 2447, January 13, 2005; 70 FR 14490, March 22,
2005; and 70 FR 41250, July 18, 2005).
The 5-year demonstration project on direct payment of fees to
eligible non-attorneys under section 303 of the SSPA commenced on
February 28, 2005. We began making direct payment to non-attorneys
under the demonstration project on July 28, 2005, the date on which we
determined that the initial group of applicants had satisfied the
prerequisites for participation in the project. The demonstration
project established by SSPA section 303 applies to claims for benefits
with respect to which the agreement for representation is entered into
after February 27, 2005, and before March 1, 2010. In these final
rules, we are amending our regulations to reflect the fact that non-
attorney representatives participating in the demonstration project may
have their approved fees withheld from their clients' past-due benefits
and paid directly to them.
Definition of ``Past-Due Benefits''
The amount of ``past-due benefits'' is important in calculating the
fees of representatives and in determining the maximum amount we can
pay directly for representation. Since we last defined the term ``past-
due benefits'' in our regulations, there have been several legislative
enactments that affect the definition of past-due benefits. In section
5106 of the OBRA (Pub. L. 101-508), section 321(f) of the SSIPIA (Pub.
L. 103-296), and section 302 of the SSPA, the Act was amended to
exclude from past-due benefits any continued benefits paid pursuant to
Sec. 404.1597a of part 404, any interim benefits paid pursuant to
section 223(h) of the Act, any continued benefits paid pursuant to
Sec. 416.996 of part 416, any continued benefits paid pursuant to
Sec. 416.1336(b) of part 416, and any interim benefits paid pursuant
to section 1631(a)(8) of the Act; to specify how a reduction under
section 1127 of the Act (for receipt of benefits for the same period
under both title II and title XVI) affects the past-due benefit
computation; and to address the effect of interim assistance
reimbursement payments. We are amending our regulations to reflect
these statutory changes.
Assessment on Direct Payment of Fees
Section 406 of the TWWIIA (Pub. L. 106-170) amended section 206 of
the Act by adding section 206(d), which imposed an assessment on
attorneys for the services we provide in determining and paying fees
directly to attorneys from the benefits due claimants under title II of
the Act. When that provision took effect on February 1, 2000, the
amount of the assessment was 6.3 percent of the direct payment amount,
with a provision allowing the Commissioner to determine for future
years the percentage (not to exceed 6.3 percent) necessary to achieve
full recovery of the costs of determining and paying fees to attorneys.
Effective September 1, 2004, section 301 of the SSPA revised section
206(d) to cap the assessment at the lesser of the amount calculated
using the percentage rate determined by the Commissioner or $75, and to
provide for annual adjustment of the $75 cap based on the cost-of-
living computation in section 215(i)(2)(A)(ii) of the Act. Sections 302
and 303 of the SSPA extended this assessment to the direct payment of
fees to attorneys under title XVI and to the direct payment of fees to
non-attorney representatives participating in the demonstration project
authorized by section 303.
Explanation of Changes
We are amending our regulations on representation in 20 CFR parts
404 and 416 to reflect the legislative changes to sections 206, 1127
and 1631(d) of the Act that were enacted under section 5106 of OBRA,
section 321(f) of the SSIPIA, section 406 of the TWWIIA, and sections
301 and 302 of the SSPA. In addition, we are revising the regulations
to reflect the provisions of section 303 of the SSPA. We are making
only those substantive changes necessary to conform our regulations to
these currently applicable statutory provisions. In these changes we
are:
Amending Sec. 404.1703 to revise the definition of
``past-due benefits'' to explain that we determine past-due benefits
before any applicable reduction for receipt of benefits for the same
period under title XVI and that past-due benefits do not include
continued payment of disability benefits during appeal or interim
benefits in cases of delayed final decision.
Adding to Sec. 416.1503 the definition of ``past-due
benefits'' for title XVI benefits to explain that when we determine the
amount of past-due benefits, we subtract the amount of any reduction
under section 1127 for the concurrent receipt of benefits for the same
period under both title II and title XVI, regardless of whether the
actual reduction was applied to the title II benefits or to the title
XVI benefits, and
[[Page 44767]]
that past-due benefits do not include continued benefits or interim
benefits.
Adding new Sec. Sec. 404.1717 and 416.1517 to reflect the
demonstration project extending benefit withholding and direct fee
payment to non-attorneys under title II and title XVI. These sections
also define ``eligible to participate in the direct payment
demonstration project'' and describe the claims to which the
demonstration project applies.
Amending Sec. 404.1720 to revise paragraph (b)(4) to
provide that we make direct fee payments from title II past-due
benefits both to attorneys and to non-attorney representatives eligible
to participate in the direct payment demonstration project, and that we
assume no responsibility for the payment of any fee that we have
authorized to a non-attorney if the representative is not eligible to
participate in the demonstration project. We are also revising
paragraph (c)(3) to provide that our notice of a fee determination will
state whether we are responsible for paying the representative's fee
from past-due benefits.
Amending Sec. 416.1520 to add a new paragraph (b)(4)
stating that we make direct payment of fees from past-due benefits
under title XVI to attorneys and to non-attorneys eligible to
participate in the direct payment demonstration project, and that we
assume no responsibility for the payment of any fee that we have
authorized to a non-attorney if the representative is not eligible to
participate in the demonstration project. We are revising paragraph
(c)(3) to state that our notice of fee determination will state whether
we are responsible for paying the fee, rather than that we are not
responsible for paying the fee. We are also revising paragraph (d)(3)
to state that we assume no responsibility for fee payment based on a
revised determination if the representative does not file the request
for administrative review timely.
Revising Sec. 416.1528 to place the existing text in a
newly designated paragraph (a) having the heading, ``Representation of
a party in court proceedings'' and to add a new paragraph (b) that has
the heading ``Attorney fee allowed by a Federal court.'' Paragraph (b)
states that the court may allow a reasonable fee to an attorney as part
of its favorable judgment in a proceeding under title XVI of the Act
and that we may pay the attorney the amount of the fee out of, but not
in addition to, the amount of the past-due benefits payable to the
claimant by reason of the court judgment.
Amending Sec. 404.1730 to insert a previously omitted
``the'' in paragraph (a), to add a cross-reference to the definition of
``past-due benefits'' in Sec. 404.1703, and to reflect in paragraphs
(b) and (c) the extension of the direct payment of fees from past-due
benefits under title II to non-attorneys eligible to participate in the
direct payment demonstration project. We are also adding a new
paragraph (d) to reflect that we impose an assessment on the
representative when we pay a fee directly to the representative; to
explain how we calculate the assessment; and to state that the
representative may not, directly or indirectly, request or otherwise
obtain reimbursement of the amount of the assessment from the claimant.
Adding new Sec. 416.1530 to state that direct payment of
fees under title XVI extends to attorneys for fees we authorize and for
fees a Federal court allows, and extends to non-attorneys eligible to
participate in the direct payment demonstration project for fees we
authorize. This section also describes the maximum amount we will pay
to the representative; shows that we impose an assessment on the
representative when we pay a fee directly to the representative;
explains how we calculate the assessment; and states that the
representative may not, directly or indirectly, request or otherwise
obtain reimbursement of the amount of the assessment from the claimant.
In addition to these substantive changes, we are revising
Sec. Sec. 404.1720(b)(4) and 404.1730(a), (b) and (c) to refer to the
person claiming a right under the old-age, disability, dependents', or
survivors' benefits program in the second person, and thus make the
language in these sections consistent with the use of the second person
throughout the regulations.
Interim Final Rule
On April 5, 2007 (72 FR 16720), we published interim final rules
with request for comments. The interim final rules were effective on
that date. We received no public comments on the interim final rules.
Thus, we are adopting them without change.
Regulatory Procedures
Executive Order 12866, as amended
The Office of Management and Budget (OMB) earlier determined that
the interim final rules we published on April 5, 2007, met the criteria
for a significant regulatory action under Executive Order 12866, as
amended. Accordingly, those interim final rules were subject to OMB
review. Because these final rules merely adopt the provisions of the
earlier interim final rules without change, however, OMB determined
that it did not need to review these rules again. We also have
determined that these rules meet the plain language requirement of
Executive Order 12866, as amended.
Regulatory Flexibility Act
We certify that these final rules will not have a significant
economic impact on a substantial number of small entities. Also, these
final rules simply reflect legislation already in effect. Therefore, a
regulatory flexibility analysis as provided in the Regulatory
Flexibility Act, as amended, is not required.
Paperwork Reduction Act
The Paperwork Reduction Act (PRA) of 1995 says that no persons are
required to respond to a collection of information unless it displays a
valid OMB control number. In accordance with the PRA, SSA is providing
notice that OMB has approved the information collection requirements
contained in Sec. Sec. 404.1717, 404.1730(c)(1), 404.1730(c)(2)(i),
404.1730(c)(2)(ii), 416.1517, 416.1528(a), 416.1530(c)(1),
416.1530(c)(2)(i), and 416.1530(c)(2)(ii) of these final rules. The OMB
Control Number for this (these) collection(s) is 0960-0745, expiring
06/30/2010.
(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, Reporting and
recordkeeping requirements, Social Security.
20 CFR Part 416
Administrative practice and procedure, Aged, Blind, Disability
benefits, Public assistance programs, Reporting and recordkeeping
requirements, Supplemental Security Income.
Dated: July 31, 2007.
Michael J. Astrue,
Commissioner of Social Security.
0
Accordingly, the interim final rules amending subpart R of part 404 and
subpart O of part 416 of chapter III of title 20 of the Code of Federal
Regulations, which were published at
[[Page 44768]]
72 FR 16720 on April 5, 2007, are adopted as final rules without
change.
[FR Doc. E7-15242 Filed 8-8-07; 8:45 am]
BILLING CODE 4191-02-P
