Technical Changes to the Title II Regulations, 40965-40967 [E8-16332]

Agencies

• Social Security Administration

[Federal Register Volume 73, Number 138 (Thursday, July 17, 2008)]
[Rules and Regulations]
[Pages 40965-40967]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-16332]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Part 404

[Docket No. SSA-2006-0086]
RIN 0960-AG43


Technical Changes to the Title II Regulations

AGENCY: Social Security Administration.

ACTION: Direct Final Rule with request for comments.

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SUMMARY: We are issuing this direct final rule to make technical 
corrections to our title II regulations affecting the Federal Old-Age, 
Survivors and Disability Insurance programs. This rule amends our 
regulations by correcting a cross-reference affecting entitlement to 
mother's and father's benefits, to include alternatives to the 9-month 
duration of marriage requirement. We are deleting an out-of-date cross-
reference to the definition of ``substantially all.'' In its place, we 
are restoring the regulatory definition for ``substantially all'' that 
had been inadvertently deleted to show if a grandchild or 
stepgrandchild is dependent based on our support requirements. Also, we 
are revising headings in six of our regulations to conform to plain 
language provisions of Executive Order (E.O.) 12866, as amended.
    We are also amending one of our regulations for clarity and to 
correct a typographical error.

DATES: Effective Date: This direct final rule is effective September 
15, 2008 unless adverse or critical comments are received by August 18, 
2008. If the effective date is delayed, timely notice will be published 
in the Federal Register .

COMMENT DATE: To be sure your comments are considered, we must receive 
them by August 18, 2008.

ADDRESSES: You may submit comments by one of four methods--Internet, 
facsimile, regular mail, or hand-delivery. Commenters should not submit 
the same comments multiple times or by more than one method. Regardless 
of which of the following methods you choose, please state that your 
comments refer to Docket No. SSA-2006-0086 to ensure that we can 
associate your comments with the correct regulation:
    1. Federal eRulemaking portal at https://www.regulations.gov. (This 
is the most expedient method for submitting your comments, and we 
strongly urge you to use it.) In the ``Comment or Submission'' section 
of the webpage, type ``SSA-2006-0086'', select ``Go'', and then click 
``Send a Comment or Submission.'' The Federal eRulemaking portal issues 
you a tracking number when you submit a comment.
    2. Telefax to (410) 966-2830.
    3. Letter to the Commissioner of Social Security, P.O. Box 17703, 
Baltimore, Maryland 21235-7703.
    4. Deliver your comments to the Office of Regulations, Social 
Security Administration, 922 Altmeyer Building, 6401 Security 
Boulevard, Baltimore, Maryland 21235-6401, between 8 a.m. and 4:30 p.m. 
on regular business days.
    All comments are posted on the Federal eRulemaking portal, although 
they may not appear for several days after receipt of the comment. You 
may also inspect the comments on regular business days by making 
arrangements with the contact person named in this preamble.
    Caution: All comments we receive from members of the public are 
available for public viewing on the Federal eRulemaking portal at 
https://www.regulations.gov. Therefore, you should be careful to include 
in your comments only information that you wish to make publicly 
available on the Internet. We strongly urge you not to include any 
personal information, such as your Social Security number or medical 
information, in your comments.

FOR FURTHER INFORMATION CONTACT: Mary Jayne Neubauer, Social Insurance 
Specialist, Office of Income Security Programs, Social Security 
Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401, 
(410) 966-7303. 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.

Explanation of Changes

    Correction of cross-reference in section 404.339(a)--Who is 
entitled to mother's or father's benefits.
    Section 404.339 describes how a person becomes entitled to mother's 
or father's benefits. Section 404.339(a) currently requires that the 
person be the widow or widower of the insured ``and meet the conditions 
described in Sec.  404.335(a)(1)'', which refers to a 9-month duration 
of marriage requirement for a widow or widower. This cross-reference is 
incorrect because it does not include the alternatives to the 9-month 
duration of marriage requirement, which are contained in Sec.  
404.335(a)(2), (a)(3) and (a)(4). Therefore, we are

[[Page 40966]]

correcting the cross-reference to refer to Sec.  404.335(a).
    Technical correction to section 404.340--Who is entitled to 
mother's or father's benefits as a surviving divorced spouse.
    Currently, Sec.  404.340 of the regulations explains that for you 
to be entitled to mother's or father's benefits as a surviving divorced 
spouse, you must be a surviving divorced wife or surviving divorced 
husband of someone who was fully or currently insured when he or she 
died. We are amending the introductory text in Sec.  404.340 to add 
``on the earnings record'' after ``husband'' for clarity and 
consistency with the introductory language of Sec.  404.339 of our 
regulations.
    We are also making a correction in the introductory text to correct 
a typographical error.
    Technical corrections to sections 404.348--When a child living with 
you is ``in your care''--and section 404.762-- Evidence of having a 
child in your care.
    In 1979, we published final regulations reorganizing and restating 
in simpler language, the rules on requirements for entitlement to 
Social Security benefits and how we determine family relationships when 
benefits are requested as the insured's dependent or survivor. (44 FR 
34479.) We have found that the wording of the introductory text in 
Sec. Sec.  404.348 and 404.762 could be misinterpreted so that it would 
inaccurately reflect the Social Security Act (the Act) and the 
operating policies that we follow. Therefore, in this direct final 
regulation, we are making clarifying corrections to those sections by 
removing the language that could be misinterpreted.
    Paragraphs (b)(1) and (c)(1) of section 202 of the Act explain that 
benefits are payable to a wife or husband of an individual entitled to 
Title II benefits. Paragraph (g)(1) of section 202 of the Act explains 
that benefits are also payable to a mother or father who is the widow 
or widower of a deceased insured individual (including a surviving 
divorced parent), if he or she has an entitled child of the insured in 
his or her care. Currently, our regulations at Sec.  404.348 provide 
the conditions for child in care and define the beneficiaries who can 
be entitled based on having a child of the insured in care. However, 
they do not explain that benefits can be payable to husbands before 
they become 62 years old and surviving divorced mothers and surviving 
divorced fathers, if they have the insured's entitled child in-care. 
Section 404.348, unlike Sec.  404.762, does not clearly state that 
benefits are payable to mothers and fathers as the widows or widowers 
of the insured. In addition, in discussing the evidentiary requirements 
for establishing that a child is in-care, Sec.  404.762 does not 
explain that benefits are payable to husbands and surviving divorced 
fathers.
    The inadvertent omission of husband's and surviving divorced 
mother's and surviving divorced father's benefits from the regulation 
defining child-in-care and the omission of husband's and surviving 
divorced father's benefits from the regulation describing the child in-
care evidentiary requirements was an oversight when the regulations 
were amended in 1979 to remove gender-based distinctions.
    We properly define the individuals who are entitled to benefits 
based on having a child of the insured in care in Sec. Sec.  404.330, 
404.339 and 404.340 of the regulations. We have determined that 
defining the categories of beneficiaries in Sec. Sec.  404.348 and 
404.762 is not relevant to the subject regulations--Sec. Sec.  404.330, 
404.339 and 404.340. Therefore, we are removing the first sentences in 
Sec. Sec.  404.348 and 404.762 because they are incomplete and covered 
more fully in other sections.
    Restoring definition of ``substantially all'' and amending language 
to eliminate gender-based distinctions in section 404.364--When a 
grandchild or stepgrandchild is dependent.
    To be entitled to benefits as a grandchild or stepgrandchild of an 
insured person, the child must be dependent on the insured. Consistent 
with requirements in section 202(d)(9)(A) of the Act, Sec.  404.364 
explains when a grandchild or stepgrandchild applying for benefits is 
considered dependent. One of the dependency requirements is that a 
grandchild or stepgrandchild must have been both living with and 
receiving at least one-half support from the insured for the 1-year 
period before the insured died or became entitled to old-age or 
disability benefits. Under section 202(d)(9)(B) of the Act and Sec.  
404.364(b) of our regulations, if a grandchild or stepgrandchild was 
born during this 1-year period, the living-with and support 
requirements must be met for ``substantially all'' of the period 
beginning on the child's date of birth. Section 404.364(b) refers to 
Sec.  404.362(b)(1)(iii) for a definition of ``substantially all.'' 
However, we inadvertently deleted Sec.  404.362(b)(1)(iii) from the 
regulations in 1991. (56 FR 23999.) We are defining ``substantially 
all'' in a new paragraph (c) of Sec.  404.364, using essentially the 
deleted language. Under this definition, the ``substantially all'' 
requirement is met if, at the applicable time, the insured was living 
with the child and providing at least one-half of the child's support 
and any period during which the grandparent or stepgrandparent was not 
living with the child and providing at least one-half support did not 
exceed the lesser of 3 months or one-half of the period beginning with 
the month of the child's birth.
    We are also amending paragraph (b) of Sec.  404.364 to insert ``or 
her'' after ``him'' to eliminate gender-based distinctions.

Revision of Headings to Clarify These Regulations

    We are rewriting the headings for Sec. Sec.  404.339, 404.340, 
404.348, 404.349, 404.364 and 404.762 to comply with the provisions of 
Executive Order 12866, as amended, requiring that each agency write all 
rules in plain language.

Regulatory Procedures

    Pursuant to sections 205(a), 702(a)(5), and 1631(d)(1) of the Act, 
42 U.S.C. 405(a), 902(a)(5), 1383(d)(1), we follow the Administrative 
Procedure Act (APA) rulemaking procedures specified in 5 U.S.C. 553 in 
the development of our regulations. The APA provides exceptions to its 
prior notice and public comment procedures when an agency finds there 
is good cause for dispensing with such procedures on the basis that 
they are impracticable, unnecessary, or contrary to the public 
interest.
    In the case of this rule, we believe that, under 5 U.S.C. 
553(b)(B), good cause exists for issuing these regulatory changes as a 
direct final rule, without prior public comment. As we explained above, 
in this rule, we are merely clarifying and making minor technical 
changes to some of our regulations. The clarifications and changes do 
not involve substantial exercise of our discretion, but merely correct 
typographical errors and incorrect cross references, make our 
regulations internally consistent, and restore language that had been 
inadvertently deleted from the regulations. Therefore, we have 
determined that opportunity for prior public comment is unnecessary, 
and we are issuing these regulations as a direct final rule. However, 
we are inviting public comment on the changes made by this rule and 
will consider any responsive comments received within 30 days of the 
publication of this direct 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 revising our title II rules 
to correct minor technical

[[Page 40967]]

errors and to clarify the rules. Therefore, we find that it is in the 
public interest to make this rule effective upon publication.

Executive Order 12866, as Amended

    We have consulted with the Office of Management and Budget (OMB) 
and determined that this final rule does not meet the criteria for a 
significant regulatory action under Executive Order 12866, as amended. 
Thus, it was not subject to OMB review. We have also determined that 
this rule meets the plain language requirement of Executive Order 
12866, as amended.

Regulatory Flexibility Act

    We certify that this direct 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 as 
provided in the Regulatory Flexibility Act, as amended, is not 
required.

Paperwork Reduction Act

    This rule imposes no additional reporting or recordkeeping 
requirements requiring OMB clearance.

(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.)

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: July 10, 2008.
Michael J. Astrue,
Commissioner of Social Security.

0
For the reasons set out in the preamble, we are amending part 404 of 
chapter III of title 20 of the Code of Federal Regulations as set forth 
below:

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

Subpart D--[Amended]

0
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)).


0
2. Amend Sec.  404.339 by revising the heading and paragraph (a) to 
read as follows:


Sec.  404.339  How do I become entitled to mother's or father's 
benefits as a surviving spouse?

* * * * *
    (a) You are the widow or widower of the insured and meet the 
conditions described in Sec.  404.335(a);
* * * * *


0
3. Amend Sec.  404.340 by revising the heading and introductory text to 
read as follows:


Sec.  404.340  How do I become entitled to mother's or father's 
benefits as a surviving divorced spouse?

    You may be entitled to mother's or father's benefits as the 
surviving divorced wife or the surviving divorced husband on the 
earnings record of someone who was fully or currently insured when she 
or he died. You are entitled to these benefits if--
* * * * *

0
4. Amend Sec.  404.348 by revising the heading and the introductory 
text to read as follows:


Sec.  404.348  When is a child living with me in my care?

    A child who has been living with you for at least 30 days is in 
your care unless--
* * * * *

0
5. Amend Sec.  404.349 by revising the section heading to read as 
follows:


Sec.  404.349  When is a child living apart from me in my care?

* * * * *

0
6. Amend Sec.  404.364 by revising the heading and paragraph (b), and 
by adding paragraph (c) to read as follows:


Sec.  404.364  When is a grandchild or stepgrandchild dependent?

* * * * *
    (b) You were living with the insured in the United States and 
receiving at least one-half of your support from him or her for the 
year before he or she became entitled to old-age or disability benefits 
or died; or if the insured had a period of disability that lasted until 
he or she became entitled to benefits or died, for the year immediately 
before the month in which the period of disability began. If you were 
born during the 1-year period, the insured must have lived with you and 
provided at least one-half of your support for substantially all of the 
period that begins on the date of your birth. Paragraph (c) of this 
section explains when the substantially all requirement is met.
    (c) The ``substantially all'' requirement will be met if, at one of 
the times described in paragraph (b) of this section, the insured was 
living with you and providing at least one-half of your support, and 
any period during which he or she was not living with you and providing 
one-half of your support did not exceed the lesser of 3 months or one-
half of the period beginning with the month of your birth.

Subpart H--[Amended]

0
7. The authority citation for subpart H of part 404 continues to read 
as follows:

    Authority: Secs. 205(a) and 702(a)(5) of the Social Security Act 
(42 U.S.C. 405(a) and 902(a)(5)).


0
8. Amend Sec.  404.762 by revising the heading and the introductory 
text to read as follows:


Sec.  404.762  What is acceptable evidence of having a child in my 
care?

    What evidence we will ask for depends upon whether the child is 
living with you or with someone else. You will be asked to give the 
following evidence:
* * * * *
 [FR Doc. E8-16332 Filed 7-16-08; 8:45 am]
BILLING CODE 4191-02-P