Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
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###### Social Security Administration

          - 20 CFR Part 404
          - [Docket No. SSA-2008-0070] 
          - RIN 0960-AG93 

# AGENCY:

Social Security Administration. 

# ACTION:

Final rule.

# SUMMARY:

This final rule extends for 2 years the date on which the Musculoskeletal System Listing of Impairments will no longer be effective. We use the body system listings at the third step of the sequential evaluation process when we evaluate your claim for benefits based on disability under title II and title XVI of the Social Security Act. Other than extending the effective date of the listings, we have not revised the musculoskeletal listings. This extension will ensure that we continue to have the medical evaluation criteria in the listings to adjudicate disability claims involving disorders of the musculoskeletal body system at the third step of the sequential evaluation process. 

# DATES:

This final rule is effective on February 2, 2009. 

# FOR FURTHER INFORMATION CONTACT:

                        Cheryl A. Williams, Acting Director, Office of Medical Listings Improvements, 6401 Security Boulevard, Baltimore, MD 21235-6401. Call (410) 966-4163 for further 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 

We use the Listing of Impairments (the listings) at the third step of the sequential evaluation process to evaluate claims filed by adults and children for benefits based on disability under the title II and title XVI programs. We divide the listings into two parts: Part A for adults and part B for children. If you are age 18 or over, we apply the listings in part A when we assess your claim. If you are under age 18, we first use the criteria in part B of the listings. If the criteria in part B do not apply, we may use the criteria in part A when those criteria give appropriate consideration to the effects of the impairment(s) in children. (See §§ 404.1525 and 416.925.) 

## Explanation of Changes 

In this final rule, we are extending until February 18, 2011, the date on which the Musculoskeletal System (1.00 and 101.00) listings will no longer be effective. We periodically review and update the listings in light of medical advances in disability evaluation and treatment and our program experience. We last updated the medical criteria for the Musculoskeletal System listings on November 19, 2001. 66 FR 58010. While we intend to publish proposed and final rules to update the Musculoskeletal System listings as quickly as possible, we cannot publish final rules revising these listings by February 19, 2009, the current expiration date. 

## Regulatory Procedures 

### Justification for Final Rule 

We follow the Administrative Procedure Act (APA) rulemaking procedures specified in 5 U.S.C. 553 when developing regulations. 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 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 extends the date on which the musculoskeletal body system listings will no longer be effective. It makes no substantive changes to the listings. The current regulations expressly provide that we may extend, revise, or re-promulgate the listings. Therefore, we have determined that opportunity for prior comment is unnecessary, and we are issuing this regulation 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 by 5 U.S.C. 553(d)(3). As explained above, we are not making any substantive changes in the body system listings. Without an extension of the expiration dates for these listings, we will lack the medical evaluation criteria needed for assessing impairments in this body system at the third step of the sequential evaluation process. In order to ensure that we continue to have these listings in our rules, we find that it is                           ( print page 5808)                        in the public interest to make this final rule effective on the date of publication.                 

### Executive Order 12866

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, OMB did not review it. We have also determined that this final rule meets the plain language requirement of Executive Order 12866, as amended. 

### Regulatory Flexibility Act

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

### Paperwork Reduction Act 

This final rule imposes no reporting/recordkeeping requirements necessitating clearance by OMB.

(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 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: January 22, 2009. 

Michael J. Astrue, 

Commissioner of Social Security.

For the reasons set forth in the preamble, we amend part 404, subpart P, 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 P—[Amended] 

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

Authority:Secs. 202, 205(a), (b), and (d)-(h), 216(i), 221(a) and (i), 222(c), 223, 225, and 702(a)(5) of the Social Security Act (42 U.S.C. 402, 405(a), (b), and (d)-(h), 416(i), 421(a) and (i), 422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 110 Stat. 2105, 2189; sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).

2. Amend appendix 1 to subpart P of part 404 by revising item 2 of the introductory text before part A to read as follows: 

# Appendix 1 to Subpart P of Part 404—Listing of Impairments 

* * * * *

2. Musculoskeletal System (1.00 and 101.00): February 18, 2011. 

* * * * *

[FR Doc. E9-2109 Filed 1-30-09; 8:45 am] 

BILLING CODE 4191-02-P