Federal Register / Vol. 83, No. 127 / Monday, July 2, 2018 / Rules and Regulations 30849 

1 81 FR 54520. https://www.federalregister.gov/ 

documents/2016/08/16/2016-19384/revisions-torules-of-conduct-and-standards-of-responsibilityfor-appointed-representatives. 

List of Subjects 

16 CFR Part 1112 

Administrative practice and 

procedure, Audit, Consumer protection, 

Reporting and recordkeeping 

requirements, Third party conformity 

assessment body. 

16 CFR Part 1237 

Consumer protection, Imports, 

Incorporation by reference, Infants and 

children, Labeling, Law enforcement, 

and Toys. 

For the reasons discussed in the 

preamble, the Commission amends 16 

CFR parts 1112 and 1237 as follows: 

PART 1112—REQUIREMENTS 

PERTAINING TO THIRD PARTY 

CONFORMITY ASSESSMENT BODIES 

■ 1. The authority citation for part 1112 

continues to read as follows: 

Authority: 15 U.S.C. 2063; Pub. L. 110– 

314, section 3, 122 Stat. 3016, 3017 (2008). 

■ 2. Amend § 1112.15 by adding 

paragraph (b)(47) to read as follows: 

§ 1112.15 When can a third party 

conformity assessment body apply for 

CPSC acceptance for a particular CPSC rule 

and/or test method? 

* * * * * 

(b) * * * 

(47) 16 CFR part 1237, Safety 

Standard for Booster Seats. 

* * * * * 

■ 3. Add part 1237 to read as follows: 

PART 1237—SAFETY STANDARD FOR 

BOOSTER SEATS 

Sec. 

1237.1 Scope. 

1237.2 Requirements for booster seats. 

Authority: Sec. 104, Pub. L. 110–314, 122 

Stat. 3016 (August 14, 2008); Sec. 3, Pub. L. 

112–28, 125 Stat. 273 (August 12, 2011). 

§ 1237.1 Scope. 

This part establishes a consumer 

product safety standard for booster 

seats. 

§ 1237.2 Requirements for booster seats. 

Each booster seat must comply with 

all applicable provisions of ASTM 

F2640–18, Standard Consumer Safety 

Specification for Booster Seats 

(approved on April 1, 2018). The 

Director of the Federal Register 

approves this incorporation by reference 

in accordance with 5 U.S.C. 552(a) and 

1 CFR part 51. You may obtain a copy 

from ASTM International, 100 Bar 

Harbor Drive, P.O. Box 0700, West 

Conshohocken, PA 19428; http://

www.astm.org. You may inspect a copy 

at the Office of the Secretary, U.S. 

Consumer Product Safety Commission, 

Room 820, 4330 East-West Highway, 

Bethesda, MD 20814, telephone: 301– 

504–7923, or at the National Archives 

and Records Administration (NARA). 

For information on the availability of 

this material at NARA, call 202–741– 

6030, or go to: www.archives.gov/ 

federal-register/cfr/ibr-locations.html. 

Alberta E. Mills, 

Secretary, Consumer Product Safety 

Commission. 

[FR Doc. 2018–14133 Filed 6–29–18; 8:45 am] 

BILLING CODE 6355–01–P 

SOCIAL SECURITY ADMINISTRATION 

20 CFR Parts 404 and 416 

[Docket No. SSA–2013–0044] 

RIN 0960–AH63 

Rules of Conduct and Standards of 

Responsibility for Appointed 

Representatives 

AGENCY: Social Security Administration. 

ACTION: Final rules. 

SUMMARY: We are revising our rules of 

conduct and standards of responsibility 

for representatives. We are also 

updating and clarifying the procedures 

we use when we bring charges against 

a representative for violating these rules 

and standards. These changes are 

necessary to better protect the integrity 

of our administrative process and to 

further clarify representatives’ existing 

responsibilities in their conduct with 

us. The revisions should not be 

interpreted to suggest that any specific 

conduct was permissible under our 

rules prior to these changes; instead, we 

seek to ensure that our rules of conduct 

and standards of responsibility are 

clearer as a whole and directly address 

a broader range of inappropriate 

conduct. 

DATES: These final rules will be effective 

August 1, 2018. 

FOR FURTHER INFORMATION CONTACT: 

Sarah Taheri, Office of Appellate 

Operations, Social Security 

Administration, 5107 Leesburg Pike, 

Falls Church, VA 22041, (703) 605– 

7100. For information on eligibility or 

filing for benefits, call our national tollfree 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: 

Background 

Although the vast majority of 

representatives conducting business 

before us on behalf of Social Security 

beneficiaries and claimants ethically 

and conscientiously assist their clients, 

we are concerned that some 

representatives are using our processes 

in a way that undermines the integrity 

of our programs and harms claimants. 

Accordingly, we are clarifying that 

certain actions are prohibited, and we 

are providing additional means to 

address representative actions that do 

not serve the best interests of claimants. 

On August 16, 2016,1 we published a 

Notice of Proposed Rulemaking (NPRM) 

in the Federal Register in which we 

proposed clarifications and revisions to 

our rules of conduct for representatives. 

To the extent that we adopt a proposed 

change as final without revision, and we 

already discussed at length the reason 

for and details of the proposal, we will 

not repeat that information here. 

In response to the NPRM, we received 

154 timely submitted comments that 

addressed issues within the scope of our 

proposed rules. Based on those 

comments, we are modifying some of 

our proposed changes to address 

concerns that commenters raised. We 

have also made editorial changes 

consistent with plain language writing 

requirements. We made conforming 

changes in other sections not originally 

edited in the NPRM. Finally, we made 

changes to ensure correct paragraph 

punctuation in §§ 404.1740 and 

416.1540; a nomenclature change to 

reflect the organization of our agency in 

§§ 404.1765(b)(1) and 416.1565(b)(1); 

and updated a cross-reference in 

§§ 404.1755 and 416.1555 that refers to 

§§ 404.1745 and 416.1545, sections 

reorganized and rewritten in the NPRM 

and codified in the final rule. 

Public Comments and Discussion 

Comment: Some commenters 

suggested that our proposed rules would 

deter potential representatives from 

representing claimants in Social 

Security matters. 

Response: These rules reflect our 

interest in protecting claimants and 

ensuring the integrity of our 

administrative process, and they do not 

impose unreasonable standards of 

conduct. These additional rules of 

conduct should not deter competent, 

knowledgeable, and principled 

representatives. 

Comment: Some commenters objected 

to the provision in proposed 

§ 404.1705(b)(4) and 416.1505(b)(4), 

which includes ‘‘persons convicted of a 


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felony (as defined by § 404.1506(c)), or 

any crime involving moral turpitude, 

dishonesty, false statements, 

misrepresentation, deceit, or theft’’ as 

examples of persons who lack ‘‘good 

character and reputation.’’ The 

commenters sometimes referred to this 

provision as involving a ‘‘lifetime ban’’ 

on representation. Commenters noted 

that a ‘‘lifetime ban’’ fails to consider 

multiple situations, such as overturned 

convictions. Some commenters 

suggested that we place the ban only on 

representatives with prior felony 

convictions but exempt those with past 

misdemeanor convictions, because 

claimants may have family members 

with misdemeanor convictions who are 

otherwise well-qualified to be 

representatives. Commenters opined 

that there is nothing inherent about a 

felony conviction that would prohibit a 

person from providing competent 

representation. Finally, commenters 

suggested that this proposed regulation 

would decrease the pool of 

representatives, particularly for 

minorities, because, according to these 

commenters, some statistics show 

higher conviction rates in minority 

populations. 

Response: We have broad rulemaking 

authority to decide who can serve as a 

non-attorney representative. We believe 

we can achieve our goal of protecting 

claimants from potentially fraudulent 

representatives by limiting the 

prohibition to individuals convicted of 

certain offenses that are more severe in 

nature or involve behavior that reflects 

poorly on an individual’s ability to 

represent claimants. There is no 

evidence that this approach will 

decrease the pool of available, high 

quality representatives for any 

particular population. Accordingly, we 

determined that individuals are not 

qualified to practice before us if they 

have a felony conviction (as defined in 

our rules) or a conviction involving 

moral turpitude, dishonesty, false 

statements, misrepresentation, deceit, or 

theft. These criminal convictions reflect 

crimes that, by their nature, are more 

serious based on their categorization as 

felonies, or involve behavior that 

reflects poorly on an individual’s 

honesty and moral judgment and, 

therefore, also reflects poorly on the 

individual’s ability to represent 

claimants. This disqualification would 

not apply to convictions that have been 

overturned or other similar situations, 

which we have clarified in the final 

rules. The regulation does not 

specifically bar individuals with 

misdemeanor convictions from serving 

as representatives, unless the 

misdemeanor involved moral turpitude, 

dishonesty, false statements, 

misrepresentation, deceit, or theft, 

which are the misdemeanors that we 

believe reflect a lack of honesty and 

moral judgment, characteristics that we 

consider necessary in representatives. 

Further, even if individuals are unable 

to serve as appointed representatives 

due to these rules, they may still assist 

their family members with claims in an 

unofficial capacity. 

Comment: Some commenters stated 

that claimants should be held harmless 

if they appoint a representative whom 

they later learn was not qualified 

(proposed §§ 404.1705(b)(4) and 

416.1505(b)(4)). 

Response: These rules do not suggest 

that we would impose any penalty on a 

claimant who appoints or attempts to 

appoint an unqualified representative. 

This regulatory section only identifies 

whom we will recognize as a 

representative. 

Comment: Some commenters stated 

that proposed §§ 404.1740(b)(3)(iii) and 

416.1540(b)(3)(iii) should clarify that a 

list of potential dates and times that a 

representative will be available for a 

hearing is only required to be accurate 

at the time it is submitted. The 

comments explained that many 

representatives schedule hearings in 

multiple locations, and availability may 

change once they have other obligations 

scheduled. 

Response: We understand that 

schedules change, and we do not expect 

representatives to hold open their 

schedules for all of the dates and times 

that they identify. We did not change 

the proposed regulatory text. 

Comment: Commenters stated that the 

term ‘‘scheduled’’ is too vague 

(proposed §§ 404.1740(b)(3)(iv) and 

416.1540(b)(3)(iv)). 

Response: A hearing has been 

‘‘scheduled’’ when a date and time have 

been set and we have notified all 

parties. We clarified the language in 

these sections. 

Comment: Some commenters asserted 

that restricting a representative’s right to 

withdraw after a hearing is scheduled, 

except under ‘‘extraordinary 

circumstances,’’ is an overly broad 

restriction that inhibits a 

representative’s right to withdraw in 

circumstances where the representative 

knows that the client no longer has a 

viable case. Many commenters also 

argued that forcing representatives to 

divulge their reasons for withdrawal to 

justify extraordinary circumstances may 

violate the attorney-client privilege, if 

the withdrawal is based on the 

representative’s knowledge that a client 

may be engaging in fraud. Other 

commenters stated that if a claimant 

does not want to attend a hearing but 

will not release the representative, and 

the representative cannot withdraw, the 

administrative law judge (ALJ) will not 

be able to dismiss the case and will have 

to hold a hearing, which wastes 

administrative time and resources. 

Finally, commenters noted that hearings 

are sometimes already scheduled by the 

time representatives are hired. Because 

representatives cannot view claimants’ 

files until they are appointed, 

representatives may have to withdraw 

after reviewing the file even though a 

hearing has already been scheduled. 

Response: The American Bar 

Association (ABA) Model Rules of 

Professional Conduct Rule (Model Rule) 

1.16 includes requirements for 

withdrawal similar to this regulation. 

Some examples of ‘‘extraordinary 

circumstances’’ under which we may 

allow a withdrawal include (1) serious 

illness; (2) death or serious illness in the 

representative’s immediate family; or (3) 

failure to locate a claimant despite 

active and diligent attempts to contact 

the claimant. 

We are not seeking privileged 

communications between an attorney 

and client. If the representative cannot 

describe why he or she must withdraw 

without revealing privileged or 

confidential communications (and if no 

exceptions to the attorney-client 

privilege exist, such as the crime-fraud 

exception), the representative should 

state this fact, not disclose the 

privileged or confidential 

communication, and allow the ALJ to 

evaluate the request under these 

circumstances. 

Comment: Commenters raised the 

issue of providing ‘‘prompt and timely 

communication’’ with claimants, stating 

that this is often difficult with homeless 

or indigent claimants (proposed 

§§ 404.1740(b)(3)(v) and 

416.1540(b)(3)(v)). Some commenters 

suggested changing this language to 

‘‘keep the client reasonably informed of 

the status of the case’’ in accordance 

with Model Rule 1.4. One commenter 

requested that we define ‘‘incompetent 

representation’’ and ‘‘reasonable and 

adequate representation.’’ 

Response: Representatives are 

responsible for maintaining timely 

contact with their clients. We expect 

representatives to have working contact 

information for all of their clients, but 

we recognize that it may be difficult to 

locate homeless or indigent clients in 

some circumstances. We have changed 

the language of §§ 404.1740(b)(3)(v) and 

416.1540(b)(3)(v) to take into account 

the difficulty in locating certain 

claimants despite a representative’s best 


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2Rule 1.6, Confidentiality of information. (2013). 

In American Bar Association, Center for 

Professional Responsibility, Model Rules of 

Professional Conduct. Retrieved from https://

www.americanbar.org/groups/professional_

responsibility/publications/model_rules_of_

professional_conduct/rule_1_6_confidentiality_of_

information.html. 

efforts. We did not provide any 

definition of ‘‘incompetent 

representation’’ or ‘‘reasonable and 

adequate representation,’’ because these 

terms do not appear in the rule. 

Comment: A number of commenters 

were concerned with proposed 

§§ 404.1740(b)(5) and 416.1540(b)(5), 

which require a representative to 

disclose certain things in writing when 

the representative submits a medical or 

vocational opinion to us. The 

commenters specifically raised concerns 

about the disclosure of physician 

referrals and the disclosure requirement 

when the medical or vocational opinion 

was ‘‘drafted, prepared, or issued’’ by an 

employee of the representative or an 

individual contracting with the 

representative for services. Commenters 

also stated that the term ‘‘prepared’’ is 

vague, and it is unclear whether 

disclosure would be required if a 

representative discusses the sequential 

evaluation process with a provider of an 

opinion or supplies a questionnaire for 

a provider to complete. Some 

commenters further maintained that 

requiring disclosure of physician 

referrals would violate the attorneyclient privilege and that such referrals 

are irrelevant to the representation of 

the case. Commenters also requested 

that the regulation clarify that opinions 

are entitled to the same weight 

regardless of whether the representative 

requested them. Finally, commenters 

argued that requiring disclosure will 

‘‘chill’’ referrals for those claimants who 

need them most. 

Response: When a representative 

submits a medical or vocational opinion 

to us, he or she has an affirmative duty 

to disclose to us in writing if the 

representative or one of the 

representative’s employees or 

contractors participated in drafting, 

preparing, or issuing the opinion. For 

clarity, we consider providing guidance 

or providing a questionnaire, template 

or format to fall within the parameters 

of this rule when the guidance, 

questionnaire, template or format is 

used to draft a medical or vocational 

opinion submitted to us. In response to 

the concern that the term ‘‘prepared’’ is 

vague, unless the context indicates 

otherwise, we intend the ordinary 

meaning of words used in our 

regulations. We intend the word 

‘‘prepared’’ here to have its ordinary 

meaning. Representatives also have an 

affirmative duty to disclose to us in 

writing if the representative referred or 

suggested that the claimant be 

examined, treated, or assisted by the 

individual who provided the opinion 

evidence. However, we are not seeking 

privileged or confidential 

communications concerning legal 

advice between an attorney and client, 

nor are we requiring disclosure of 

detailed communications. We are only 

requiring that representatives disclose 

the fact that they made a referral or 

participated in drafting, preparing, or 

issuing an opinion. See Fed. R. of Civ. 

P. 26(b)(5)(A) (‘‘When a party withholds 

information otherwise discoverable by 

claiming that the information is 

privileged or subject to protection as 

trial-preparation material, the party 

must . . . describe the nature of the 

documents, communications, or 

tangible things not produced or 

disclosed—and do so in a manner that, 

without revealing information itself 

privileged or protected, will enable 

other parties to assess the claim.’’) We 

explain what we mean by the attorneyclient and attorney work product 

privileges more fully in 

§§ 404.1513(b)(2) and 416.913(b)(2) of 

our rules. We will interpret the 

affirmative duty in final 

§§ 404.1740(b)(5) and 416.1540(b)(5) in 

light of our interpretation of those 

privileges in §§ 404.1513(b)(2) and 

416.913(b)(2). In response to the request 

that the regulation clarify that opinions 

are entitled to the same weight 

regardless of whether the representative 

requested them, we have other 

regulations that govern how we evaluate 

medical opinion evidence. See 20 CFR 

404.1520c, 404.1527, 416.920c, and 

416.927. 

Comment: Some commenters stated 

that notifying us if a claimant is 

committing fraud (proposed 

§§ 404.1740(b)(6) and 416.1540(b)(6)) 

violates the attorney-client privilege and 

Model Rule 1.6. Commenters also 

suggested a more direct adoption of the 

provisions of Model Rule 3.3, Candor 

Toward the Tribunal. 

Response: We do not believe that our 

final rule violates either the attorneyclient privilege or Model Rule 1.6. Our 

final rule requires a representative to 

‘‘[d]isclose to us immediately if the 

representative discovers that his or her 

services are or were used by the 

claimant to commit fraud against us.’’ 

Model Rule 1.6(b)(2) 2 includes an 

exception to confidentiality ‘‘to prevent 

the client from committing a crime or 

fraud that is reasonably certain to result 

in substantial injury to the financial 

interests or property of another and in 

furtherance of which the client has used 

or is using the lawyer’s services.’’ 

Furthermore, the crime-fraud exception 

to the attorney-client privilege allows a 

lawyer to disclose otherwise privileged 

communications when they are in 

furtherance of a crime or fraudulent act. 

When a claimant uses a representative’s 

services in furtherance of the claimant’s 

fraud, there is a reasonable certainty 

that the fraud will cause substantial 

injury to the Social Security trust funds. 

Such fraud also undermines public 

confidence in our programs. Our 

proposed and final rules are fully 

consistent with the exception to 

confidentiality found in Model Rule 

1.6(b)(2). The final rules also address 

the aim of Model Rule 3.3 to limit false 

or misleading statements, but within the 

unique context of the legal and 

procedural structure of the Social 

Security programs. Therefore, we are 

not changing the originally proposed 

language. 

Comment: A few commenters asked 

us to clarify whether disbarment or 

disqualification will be an automatic bar 

to representation, or whether we will 

address each situation individually 

(proposed §§ 404.1740(b)(7)–(9) and 

416.1540(b)(7)–(9)). 

Response: We will address any 

disclosure made pursuant to 

§§ 404.1740(b)(7)–(9) and 

416.1540(b)(7)–(9) on an individual 

basis. 

Comment: Some commenters stated 

that proposed § 416.1540(b)(10) is too 

broad, because representatives often 

refer Supplemental Security Income 

(SSI) claimants to special needs trust 

attorneys, and the proposed language 

suggests that the representatives would 

be responsible for the conduct of the 

trust attorneys. Other commenters 

recommend that the regulation 

encompass only those people over 

whom representatives have supervisory 

authority. 

Response: In response to these 

comments, we have revised the 

language in final §§ 404.1740(b)(10) and 

416.1540(b)(10) to clarify that the 

affirmative duty applies ‘‘when the 

representative has managerial or 

supervisory authority over these 

individuals or otherwise has 

responsibility to oversee their work.’’ 

Further, because this requirement is an 

affirmative duty, we moved language 

from proposed §§ 404.1740(c)(14) and 

416.1540(c)(14) to §§ 404.1740(b)(10) 

and 416.1540(b)(10), which outlines the 

affirmative duty to take remedial action 

when: (i) The representative’s 

employees, assistants, partners, 

contractors, or other individuals’ 

conduct violates these rules of conduct 


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30852 Federal Register / Vol. 83, No. 127 / Monday, July 2, 2018 / Rules and Regulations 

3 81 FR 14166 (March 16, 2016). https://

www.federalregister.gov/documents/2016/03/16/ 

2016-05916/social-security-ruling-16-3p-titles-iiand-xvi-evaluation-of-symptoms-in-disabilityclaims. Corrected at 81 FR 15776 (March 24, 2016). 

https://www.federalregister.gov/documents/2016/ 

03/24/2016-06598/social-security-ruling-16-3ptitles-ii-and-xvi-evaluation-of-symptoms-indisability-claims. 

and standards of responsibility, and (ii) 

the representative has reason to believe 

a violation of these rules of conduct and 

standards of responsibility will occur. 

We revised the language of final 

§§ 404.1740(c)(14) and 415.1540(c)(14) 

to prohibit representatives from failing 

to oversee other individuals working on 

the claims on which the representative 

is appointed when the representative 

has managerial or supervisory authority 

over these individuals or otherwise has 

responsibility to oversee their work. 

Comment: Some commenters objected 

to proposed §§ 404.1740(c)(1) and 

416.1540(c)(1), which prohibit 

‘‘misleading a claimant, or prospective 

claimant or beneficiary, about the 

representative’s services and 

qualifications.’’ Commenters asked 

whether it would be misleading if a 

claimant refers to a non-attorney 

representative as an attorney, and the 

representative does not correct them. 

Response: Not correcting a known 

misconception about the 

representative’s status as a non-attorney 

is ‘‘misleading a claimant,’’ as 

contemplated under this prohibition. 

Comment: A few commenters 

objected to the language of proposed 

§ 404.1740(c)(7)(ii)(B), which prohibits 

‘‘[p]roviding misleading information or 

misrepresenting facts . . . where the 

representative has or should have 

reason to believe the information was 

misleading and the facts would 

constitute a misrepresentation.’’ These 

commenters stated that many claimants 

are mentally ill, and it is difficult to 

ascertain whether a client is providing 

accurate facts. The commenters also 

objected to the term ‘‘should,’’ stating 

that it is overly vague. A few 

commenters believe the standard 

‘‘knowingly’’ should be added. 

Commenters also stated that this 

regulation conflicted with our rule on 

the submission of evidence, which 

requires representatives to submit all 

available evidence. 

Response: Based on the comments, we 

have changed the ‘‘has or should have 

reason to believe’’ language of the 

proposed rule to ‘‘knows or should have 

known’’ in the final rule. Whether or not 

a claimant is mentally ill, a 

representative will violate the standard 

in the final rule if he or she presents 

information that he or she knows to be 

false or circumstances demonstrate that 

the representative should have known it 

to be false. This rule does not conflict 

with our rule requiring representatives 

to submit all evidence, because a false 

document is not evidence as 

contemplated under §§ 404.1513 and 

416.913. Further, ‘‘should’’ is not an 

overly broad standard and is a 

commonly used term in Federal laws 

and regulations. See, e.g., 42 U.S.C. 

1320a–8a(a)(1). 

Comment: A few commenters stated 

that proposed §§ 404.1740(c)(7)(ii)(C) 

and 416.1540(c)(7)(ii)(C) should clarify 

that representatives may contact SSA 

staff regarding matters such as case 

status, requests for critical case flags, 

Congressional inquiries, or when SSA 

staff ask the representative to contact 

them. 

Response: We did not make any 

changes in response to these comments. 

The proposed and final rules 

specifically states that representatives 

should not communicate with agency 

staff ‘‘outside the normal course of 

business or other prescribed procedures 

in an attempt to inappropriately 

influence the processing or outcome of 

a claim(s).’’ Matters such as case status 

inquiries, requests for critical case flags, 

and Congressional inquiries are not 

outside the normal course of business, 

nor would they be attempts to 

inappropriately influence the processing 

or outcome of a claim. 

Comment: Some commenters asked 

whether a representative would be 

guilty of misleading an ALJ if an ALJ 

finds that a claimant’s statements are 

‘‘not fully credible.’’ These commenters 

also recommend adding ‘‘knowingly’’ to 

proposed §§ 404.1740(c)(3) and 

416.1540(c)(3). Other commenters stated 

that requiring representatives to disclose 

matters of which they do not have 

actual knowledge would ‘‘chill’’ 

advocacy. 

Response: On March 16, 2016, we 

published Social Security Ruling (SSR) 

16–3p, ‘‘Titles II and XVI: Evaluation of 

Symptoms in Disability Claims’’ in the 

Federal Register.3 In this SSR, we 

eliminated the use of the term 

‘‘credibility’’ from our sub-regulatory 

policy, because our regulations do not 

use this term. In doing so, we clarified 

that subjective symptom evaluation is 

not an examination of an individual’s 

character. Instead, we will more closely 

follow our regulatory language regarding 

symptom evaluation. With respect to the 

commenters’ concerns, the regulations 

include a number of factors that must be 

considered when evaluating symptoms, 

but a representative will not be found to 

be misleading an ALJ based solely on 

the results of this evaluation. 

Acknowledging the concern about the 

standard we will use in evaluating this 

type of situation, we are changing the 

‘‘has or should have reason to believe’’ 

language in the proposed rule to ‘‘knows 

or should have known’’ in the final rule. 

This provision addresses only situations 

where the representative knows or 

should have known that specific 

statements, evidence, assertions, or 

representations are false or misleading. 

Comment: Commenters objected to 

the 14-day limit to respond to charges 

and proposed that the 30-day limit in 

the current rules should be maintained 

(proposed §§ 404.1750 and 416.1550). 

Response: We did not adopt this 

suggestion, because we believe that 14 

days allows for a more timely resolution 

of misconduct matters. The 14-day 

timeframe provides the representative 

with sufficient time to respond to 

charges, which typically consists only of 

affirming or denying various factual 

allegations. However, in response to the 

commenters’ concerns that the proposed 

rule did not give representatives 

adequate time to respond to the charges, 

we added the term ‘‘business’’ to clarify 

that the time limit is 14 business days. 

Comment: One commenter suggested 

that representatives be suspended from 

representing clients until the sanction 

process is complete. 

Response: The Social Security Act 

requires that we give a representative 

notice and opportunity for a hearing 

before we suspend or disqualify him or 

her from practicing before us. We have 

long allowed representatives to continue 

to practice before us until there is a final 

decision on the case. We will continue 

to impose sanctions only after the 

administrative sanctions process is 

completed. 

Comment: Some commenters 

suggested that a representative should 

not have to show good cause for 

objecting to the manner of hearing 

(proposed §§ 404.1765(d) and 

416.1565(d)). One commenter stated 

that a hearing should always be in 

person unless a party can demonstrate 

that there is no genuine dispute as to 

any material fact. 

Response: The hearing officer is in the 

best position to decide how to conduct 

a particular hearing in the most effective 

and efficient manner. A ‘‘good cause’’ 

standard for objecting to the manner of 

the hearing ensures that any objection to 

this issue is well-founded. 

Comment: A few commenters stated 

that 14 days is insufficient time to 

request review of a hearing officer’s 

decision (proposed §§ 404.1775 and 

416.1575). The commenters requested 

that the rule clarify whether it refers to 

business or calendar days. 


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4Administrative Conference of the United States, 

Recommendation 2017–1, Adjudication Materials 

on Agency Websites, 82 FR 31039 (July 5, 2017). 5 20 CFR 404.970(a)(3), 416.1470(a)(3). 

Response: In response to these and 

other related comments, we adopted 

this suggestion and added the word 

‘‘business’’ to clarify that the 14-day 

period means 14 business days. 

Comment: Some commenters stated 

that proposed §§ 404.1785 and 416.1585 

shift the burden from the Appeals 

Council to representatives to obtain 

evidence. They stated that by changing 

the language from the Appeals Council 

‘‘shall require that the evidence be 

obtained’’ to ‘‘the Appeals Council will 

allow the party with the information to 

submit the additional evidence,’’ the 

regulation relieves the Appeals Council 

of the responsibility for obtaining 

evidence and allows the Appeals 

Council to ignore evidence submitted by 

another party. 

Response: We changed the language 

in §§ 404.1785 and 416.1585 for clarity. 

In the adversarial proceedings to 

sanction representatives, the obligation 

to provide evidence to the Appeals 

Council is, and has always been, on the 

party with the information. 

Accordingly, we are not changing the 

language proposed in the NPRM. 

Comment: Some commenters asked 

that we clarify which decisions we will 

publish and when we will publish them 

(proposed §§ 404.1790(f) and 

416.1590(f)). They also inquired as to 

whether the public will have access to 

the published decisions, and they 

expressed concern that the decisions 

might contain personally identifiable 

information. 

Response: On June 16, 2017, the 

Administrative Conference of the 

United States (ACUS) adopted 

Recommendation 2017–1, 

‘‘Adjudication Materials on Agency 

Websites.’’ 4 ACUS recommended that 

‘‘[a]gencies should consider providing 

access on their websites to decisions 

and supporting materials (e.g., 

pleadings, motions, briefs) issued and 

filed in adjudicative proceedings.’’ 

ACUS also recommended that 

‘‘[a]gencies that adjudicate large 

volumes of cases that do not vary 

considerably in terms of their factual 

contexts or the legal analyses employed 

in their dispositions should consider 

disclosing on their websites a 

representative sampling of actual cases 

and associated adjudication materials.’’ 

We will work with ACUS with respect 

to this recommendation, and we will 

provide details in sub-regulatory 

guidance of how we will publish 

decisions after these final rules become 

effective. In response to the 

commenters’ concerns about privacy, 

we take concerns regarding personally 

identifiable information seriously, and 

the final rule makes clear that we will 

remove or redact any personally 

identifiable information from the 

decisions. 

Comment: One commenter stated that 

proposed § 404.1790 should use a 

‘‘preponderance of the evidence’’ 

standard rather than the ‘‘substantial 

evidence standard.’’ 

Response: The Appeals Council is an 

appellate body that generally reviews 

decisions using the substantial evidence 

standard.5 Therefore, we are not 

changing this language. 

Comment: Some commenters stated 

that the word ‘‘may’’ should be changed 

to ‘‘will’’ in proposed §§ 404.1790(f) and 

416.1590(f), which state, ‘‘Prior to 

making a decision public, we may 

remove or redact information from the 

decision.’’ 

Response: We adopted this comment 

and changed ‘‘may’’ to ‘‘will.’’ We will 

redact any personally identifiable 

information from the decisions. 

Comment: One commenter stated that 

the 3-year ban on reinstatement after 

suspension is too harsh. 

Response: The 3-year prohibition is 

actually a 3-year wait to reapply for 

reinstatement and we believe it is 

appropriate, because our experience 

shows that when the Appeals Council 

denies a request for reinstatement, the 

representative typically has not taken 

appropriate action to remedy the 

violation or does not understand its 

severity. We are implementing this 

change to ensure more thoroughly 

supported requests for reinstatement. 

Regulatory Procedures 

Executive Order 12866 as 

Supplemented by Executive Order 

13563 

We consulted with the Office of 

Management and Budget (OMB) and 

determined that these final rules meet 

the criteria for a significant regulatory 

action under Executive Order 12866, as 

supplemented by Executive Order 

13563 and are subject to OMB review. 

Executive Order 13771 

This rule is not subject to the 

requirements of Executive Order 13771 

because it is administrative in nature 

and results in no more than de minimis 

costs. 

Regulatory Flexibility Act 

We certify that these final rules will 

not have a significant economic impact 

on a substantial number of small entities 

because they affect individuals only. 

Therefore, a regulatory flexibility 

analysis is not required under the 

Regulatory Flexibility Act, as amended. 

Paperwork Reduction Act 

These final rules contain information 

collection burdens in §§ 404.1740(b)(5) 

through (9) and 416.1540(b)(5) through 

(b)(9) that require OMB clearance under 

the Paperwork Reduction Act of 1995 

(PRA). As the PRA requires, we 

submitted a clearance request to OMB 

for approval of these sections. We will 

publish the OMB number and 

expiration date upon approval. 

Further, these final rules contain 

information collection activities at 20 

CFR 404.1750(c) and (e)(2), 

404.1765(g)(1), 404.1775(b), 

404.1799(d)(2), 416.1550(c) and (e)(2), 

416.1565(g)(1), 416.1575(b), and 

416.1599(d)(2). However, 44 U.S.C. 

3518(c)(1)(B)(ii) exempts these activities 

from the OMB clearance requirements 

under the Paperwork Reduction Act of 

1995. 

We published an NPRM on August 

16, 2016 at 81 FR 54520. In that NPRM, 

we solicited comments under the PRA 

on the burden estimate; the need for the 

information; its practical utility; ways to 

enhance its quality, utility and clarity; 

and on ways to minimize the burden on 

respondents, including the use of 

automated collection techniques or 

other forms of information technology. 

We received no public comments 

relating to any of these issues. We will 

not collect the information referenced in 

these burden sections until we receive 

OMB approval. 

(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 (SSI). 

Nancy A. Berryhill, 

Acting Commissioner of Social Security. 

For the reasons set out in the 

preamble, we amend 20 CFR chapter III, 


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30854 Federal Register / Vol. 83, No. 127 / Monday, July 2, 2018 / Rules and Regulations 

parts 404 and part 416, as set forth 

below: 

PART 404—FEDERAL OLD-AGE, 

SURVIVORS AND DISABILITY 

INSURANCE (1950– ) 

Subpart R—[Amended] 

■ 1. The authority citation for subpart R 

of part 404 continues to read as follows: 

Authority: Secs. 205(a), 206, 702(a)(5), and 

1127 of the Social Security Act (42 U.S.C. 

405(a), 406, 902(a)(5), and 1320a–6). 

■ 2. Revise § 404.1705(b) to read as 

follows: 

§ 404.1705 Who may be your 

representative. 

* * * * * 

(b) You may appoint any person who 

is not an attorney to be your 

representative in dealings with us if the 

person— 

(1) Is capable of giving valuable help 

to you in connection with your claim; 

(2) Is not disqualified or suspended 

from acting as a representative in 

dealings with us; 

(3) Is not prohibited by any law from 

acting as a representative; and 

(4) Is generally known to have a good 

character and reputation. Persons 

lacking good character and reputation, 

include, but are not limited to, persons 

who have a final conviction of a felony 

(as defined by § 404.1506(c)) or any 

crime involving moral turpitude, 

dishonesty, false statements, 

misrepresentation, deceit, or theft. 

* * * * * 

■ 3. Amend § 404.1740 as follows: 

■ a. Revise paragraphs (b)(2)(vii) and 

(b)(3); 

■ b. Add paragraphs (b)(5) through (10); 

■ c. Revise paragraphs (c)(1) through (6) 

and (c)(7)(ii); 

■ d. Remove paragraph (c)(7)(iii); 

■ e. Revise paragraphs (c)(8) through 

(13); and 

■ f. Add paragraph (c)(14). 

The revisions and additions read as 

follows: 

§ 404.1740 Rules of conduct and 

standards of responsibility for 

representatives. 

* * * * * 

(b) * * * 

(2) * * * 

(vii) Any other factors showing how 

the claimant’s impairment(s) affects his 

or her ability to work. In §§ 404.1560 

through 404.1569a, we discuss in more 

detail the evidence we need when we 

consider vocational factors. 

(3) Conduct his or her dealings in a 

manner that furthers the efficient, fair, 

and orderly conduct of the 

administrative decision-making process, 

including duties to: 

(i) Provide competent representation 

to a claimant. Competent representation 

requires the knowledge, skill, 

thoroughness, and preparation 

reasonably necessary for the 

representation. A representative must 

know the significant issue(s) in a claim, 

have reasonable and adequate 

familiarity with the evidence in the 

case, and have a working knowledge of 

the applicable provisions of the Social 

Security Act, as amended, the 

regulations, the Social Security Rulings, 

and any other applicable provisions of 

law. 

(ii) Act with reasonable diligence and 

promptness in representing a claimant. 

This includes providing prompt and 

responsive answers to our requests for 

information pertinent to processing of 

the claim. 

(iii) When requested, provide us, in a 

manner we specify, potential dates and 

times that the representative will be 

available for a hearing. We will inform 

the representative how many potential 

dates and times we require to coordinate 

the hearing schedule. 

(iv) Only withdraw representation at 

a time and in a manner that does not 

disrupt the processing or adjudication of 

a claim and that provides the claimant 

adequate time to find new 

representation, if desired. A 

representative should not withdraw 

after we set the time and place for the 

hearing (see § 404.936) unless the 

representative can show that a 

withdrawal is necessary due to 

extraordinary circumstances, as we 

determine on a case-by-case basis. 

(v) Maintain prompt and timely 

communication with the claimant, 

which includes, but is not limited to, 

reasonably informing the claimant of all 

matters concerning the representation, 

consulting with the claimant on an 

ongoing basis during the entire 

representational period, and promptly 

responding to a claimant’s reasonable 

requests for information. When we 

evaluate whether a representative has 

maintained prompt and timely 

communication with the claimant, we 

will consider the difficulty the 

representative has in locating a 

particular claimant (e.g., because the 

claimant is homeless) and the 

representative’s efforts to keep that 

claimant informed. 

* * * * * 

(5) Disclose in writing, at the time a 

medical or vocational opinion is 

submitted to us or as soon as the 

representative is aware of the 

submission to us, if: 

(i) The representative’s employee or 

any individual contracting with the 

representative drafted, prepared, or 

issued the medical or vocational 

opinion; or 

(ii) The representative referred or 

suggested that the claimant seek an 

examination from, treatment by, or the 

assistance of, the individual providing 

opinion evidence. 

(6) Disclose to us immediately if the 

representative discovers that his or her 

services are or were used by the 

claimant to commit fraud against us. 

(7) Disclose to us whether the 

representative is or has been disbarred 

or suspended from any bar or court to 

which he or she was previously 

admitted to practice, including 

instances in which a bar or court took 

administrative action to disbar or 

suspend the representative in lieu of 

disciplinary proceedings (e.g. 

acceptance of voluntary resignation 

pending disciplinary action). If the 

disbarment or suspension occurs after 

the appointment of the representative, 

the representative will immediately 

disclose the disbarment or suspension 

to us. 

(8) Disclose to us whether the 

representative is or has been 

disqualified from participating in or 

appearing before any Federal program or 

agency, including instances in which a 

Federal program or agency took 

administrative action to disqualify the 

representative in lieu of disciplinary 

proceedings (e.g. acceptance of 

voluntary resignation pending 

disciplinary action). If the 

disqualification occurs after the 

appointment of the representative, the 

representative will immediately disclose 

the disqualification to us. 

(9) Disclose to us whether the 

representative has been removed from 

practice or suspended by a professional 

licensing authority for reasons that 

reflect on the person’s character, 

integrity, judgment, reliability, or fitness 

to serve as a fiduciary. If the removal or 

suspension occurs after the appointment 

of the representative, the representative 

will immediately disclose the removal 

or suspension to us. 

(10) Ensure that all of the 

representative’s employees, assistants, 

partners, contractors, or any person 

assisting the representative on claims 

for which the representative has been 

appointed, comply with these rules of 

conduct and standards of responsibility 

for representatives, when the 

representative has managerial or 

supervisory authority over these 

individuals or otherwise has 

responsibility to oversee their work. 


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This includes a duty to take remedial 

action when: 

(i) The representative’s employees, 

assistants, partners, contractors or other 

individuals’ conduct violates these rules 

of conduct and standards of 

responsibility; and 

(ii) The representative has reason to 

believe a violation of these rules of 

conduct and standards of responsibility 

occurred or will occur. 

(c) * * * 

(1) In any manner or by any means 

threaten, coerce, intimidate, deceive or 

knowingly mislead a claimant, or 

prospective claimant or beneficiary, 

regarding benefits or other rights under 

the Act. This prohibition includes 

misleading a claimant, or prospective 

claimant or beneficiary, about the 

representative’s services and 

qualifications. 

(2) Knowingly charge, collect or 

retain, or make any arrangement to 

charge, collect or retain, from any 

source, directly or indirectly, any fee for 

representational services in violation of 

applicable law or regulation. This 

prohibition includes soliciting any gift 

or any other item of value, other than 

what is authorized by law. 

(3) Make or present, or participate in 

the making or presentation of, false or 

misleading oral or written statements, 

evidence, assertions, or representations 

about a material fact or law concerning 

a matter within our jurisdiction, in 

matters where the representative knows 

or should have known that those 

statements, evidence, assertions, or 

representations are false or misleading. 

(4) Through his or her own actions or 

omissions, unreasonably delay or cause 

to be delayed, without good cause (see 

§ 404.911(b)), the processing of a claim 

at any stage of the administrative 

decision-making process. 

(5) Divulge, without the claimant’s 

consent, except as may be authorized by 

regulations prescribed by us or as 

otherwise provided by Federal law, any 

information we furnish or disclose 

about a claim or prospective claim. 

(6) Attempt to influence, directly or 

indirectly, the outcome of a decision, 

determination, or other administrative 

action by any means prohibited by law, 

or by offering or granting a loan, gift, 

entertainment, or anything of value to a 

presiding official, agency employee, or 

witness who is or may reasonably be 

expected to be involved in the 

administrative decision-making process, 

except as reimbursement for 

legitimately incurred expenses or lawful 

compensation for the services of an 

expert witness retained on a noncontingency basis to provide evidence. 

(7) * * * 

(ii) Behavior that has the effect of 

improperly disrupting proceedings or 

obstructing the adjudicative process, 

including but not limited to: 

(A) Directing threatening or 

intimidating language, gestures, or 

actions at a presiding official, witness, 

contractor, or agency employee; 

(B) Providing misleading information 

or misrepresenting facts that affect how 

we process a claim, including, but not 

limited to, information relating to the 

claimant’s work activity or the 

claimant’s place of residence or mailing 

address in matters where the 

representative knows or should have 

known that the information was 

misleading and the facts would 

constitute a misrepresentation; and 

(C) Communicating with agency staff 

or adjudicators outside the normal 

course of business or other prescribed 

procedures in an attempt to 

inappropriately influence the processing 

or outcome of a claim(s). 

(8) Violate any section of the Act for 

which a criminal or civil monetary 

penalty is prescribed. 

(9) Refuse to comply with any of our 

rules or regulations. 

(10) Suggest, assist, or direct another 

person to violate our rules or 

regulations. 

(11) Advise any claimant or 

beneficiary not to comply with any of 

our rules or regulations. 

(12) Knowingly assist a person whom 

we suspended or disqualified to provide 

representational services in a 

proceeding under title II of the Act, or 

to exercise the authority of a 

representative described in § 404.1710. 

(13) Fail to comply with our 

sanction(s) decision. 

(14) Fail to oversee the 

representative’s employees, assistants, 

partners, contractors, or any other 

person assisting the representative on 

claims for which the representative has 

been appointed when the representative 

has managerial or supervisory authority 

over these individuals or otherwise has 

responsibility to oversee their work. 

■ 4. Amend § 404.1745 by revising 

paragraphs (d) and (e) and adding 

paragraph (f) to read as follows: 

§ 404.1745 Violations of our requirements, 

rules, or standards. 

* * * * * 

(d) Has been, by reason of 

misconduct, disbarred or suspended 

from any bar or court to which he or she 

was previously admitted to practice (see 

§ 404.1770(a)); 

(e) Has been, by reason of misconduct, 

disqualified from participating in or 

appearing before any Federal program or 

agency (see § 404.1770(a)); or 

(f) Who, as a non-attorney, has been 

removed from practice or suspended by 

a professional licensing authority for 

reasons that reflect on the person’s 

character, integrity, judgment, 

reliability, or fitness to serve as a 

fiduciary. 

■ 5. Amend § 404.1750 by revising 

paragraphs (c), (d), (e)(2), and (f) to read 

as follows: 

§ 404.1750 Notice of charges against a 

representative. 

* * * * * 

(c) We will advise the representative 

to file an answer, within 14 business 

days from the date of the notice, or from 

the date the notice was delivered 

personally, stating why he or she should 

not be suspended or disqualified from 

acting as a representative in dealings 

with us. 

(d) The General Counsel or other 

delegated official may extend the 14-day 

period specified in paragraph (c) of this 

section for good cause, in accordance 

with § 404.911. 

(e) * * * 

(2) File the answer with the Social 

Security Administration, at the address 

specified on the notice, within the 14- 

day time period specified in paragraph 

(c) of this section. 

(f) If the representative does not file 

an answer within the 14-day time 

period specified in paragraph (c) of this 

section (or the period extended in 

accordance with paragraph (d) of this 

section), he or she does not have the 

right to present evidence, except as may 

be provided in § 404.1765(g). 

■ 6. Revise § 404.1755 to read as 

follows: 

§ 404.1755 Withdrawing charges against a 

representative. 

The General Counsel or other 

delegated official may withdraw charges 

against a representative. We will 

withdraw charges if the representative 

files an answer, or we obtain evidence, 

that satisfies us that we should not 

suspend or disqualify the representative 

from acting as a representative. When 

we consider withdrawing charges 

brought under § 404.1745(d) through (f) 

based on the representative’s assertion 

that, before or after our filing of charges, 

the representative has been reinstated to 

practice by the court, bar, or Federal 

program or Federal agency that 

suspended, disbarred, or disqualified 

the representative, the General Counsel 

or other delegated official will 

determine whether such reinstatement 

occurred, whether it remains in effect, 

and whether he or she is reasonably 

satisfied that the representative will in 

the future act in accordance with the 


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30856 Federal Register / Vol. 83, No. 127 / Monday, July 2, 2018 / Rules and Regulations 

provisions of section 206(a) of the Act 

and our rules and regulations. If the 

representative proves that reinstatement 

occurred and remains in effect and the 

General Counsel or other delegated 

official is so satisfied, the General 

Counsel or other delegated official will 

withdraw those charges. The action of 

the General Counsel or other delegated 

official regarding withdrawal of charges 

is solely that of the General Counsel or 

other delegated official and is not 

reviewable, or subject to consideration 

in decisions made under §§ 404.1770 

and 404.1790. If we withdraw the 

charges, we will notify the 

representative by mail at the 

representative’s last known address. 

■ 7. Amend § 404.1765 by revising 

paragraphs (b)(1), (c), (d)(1) and (3), and 

(g)(1) and (3) to read as follows: 

§ 404.1765 Hearing on charges. 

* * * * * 

(b) Hearing officer. (1) The Deputy 

Commissioner for the Office of Hearings 

Operations or other delegated official 

will assign an administrative law judge, 

designated to act as a hearing officer, to 

hold a hearing on the charges. 

* * * * * 

(c) Time and place of hearing. The 

hearing officer will mail the parties a 

written notice of the hearing at their last 

known addresses, at least 14 calendar 

days before the date set for the hearing. 

The notice will inform the parties 

whether the appearance of the parties or 

any witnesses will be in person, by 

video teleconferencing, or by telephone. 

The notice will also include 

requirements and instructions for filing 

motions, requesting witnesses, and 

entering exhibits. 

(d) Change of time and place for 

hearing. (1) The hearing officer may 

change the time and place for the 

hearing, either on his or her own 

initiative, or at the request of the 

representative or the other party to the 

hearing. The hearing officer will not 

consider objections to the manner of 

appearance of parties or witnesses, 

unless the party shows good cause not 

to appear in the prescribed manner. To 

determine whether good cause exists for 

extending the deadline, we use the 

standards explained in § 404.911. 

* * * * * 

(3) Subject to the limitations in 

paragraph (g)(2) of this section, the 

hearing officer may reopen the hearing 

for the receipt of additional evidence at 

any time before mailing notice of the 

decision. 

* * * * * 

(g) Conduct of the hearing. (1) The 

representative or the other party may 

file a motion for decision on the basis 

of the record prior to the hearing. The 

hearing officer will give the 

representative and the other party a 

reasonable amount of time to submit 

any evidence and to file briefs or other 

written statements as to fact and law 

prior to deciding the motion. If the 

hearing officer concludes that there is 

no genuine dispute as to any material 

fact and the movant is entitled to a 

decision as a matter of law, the hearing 

officer may grant the motion and issue 

a decision in accordance with the 

provisions of § 404.1770. 

* * * * * 

(3) The hearing officer will make the 

hearing open to the representative, to 

the other party, and to any persons the 

hearing officer or the parties consider 

necessary or proper. The hearing officer 

will inquire fully into the matters being 

considered, hear the testimony of 

witnesses, and accept any documents 

that are material. 

* * * * * 

■ 8. Revise § 404.1775(b) to read as 

follows: 

§ 404.1775 Requesting review of the 

hearing officer’s decision. 

* * * * * 

(b) Time and place of filing request for 

review. The party requesting review will 

file the request for review in writing 

with the Appeals Council within 14 

business days from the date the hearing 

officer mailed the notice. The party 

requesting review will certify that a 

copy of the request for review and of 

any documents that are submitted have 

been mailed to the opposing party. 

■ 9. Revise § 404.1780(a) to read as 

follows: 

§ 404.1780 Appeals Council’s review of 

hearing officer’s decision. 

(a) Upon request, the Appeals Council 

will give the parties a reasonable time 

to file briefs or other written statements 

as to fact and law, and to request to 

appear before the Appeals Council to 

present oral argument. When oral 

argument is requested within the time 

designated by the Appeals Council, the 

Appeals Council will grant the request 

for oral argument and determine 

whether the parties will appear at the 

oral argument in person, by video 

teleconferencing, or by telephone. If oral 

argument is not requested within the 

time designated by the Appeals Council, 

the Appeals Council may deny the 

request. 

* * * * * 

■ 10. Revise § 404.1785 to read as 

follows: 

§ 404.1785 Evidence permitted on review. 

(a) General. Generally, the Appeals 

Council will not consider evidence in 

addition to that introduced at the 

hearing. However, if the Appeals 

Council finds the evidence offered is 

material to an issue it is considering, it 

may consider that evidence, as 

described in paragraph (b) of this 

section. 

(b) Individual charged filed an 

answer. (1) When the Appeals Council 

finds that additional evidence material 

to the charges is available, and the 

individual charged filed an answer to 

the charges, the Appeals Council will 

allow the party with the information to 

submit the additional evidence. 

(2) Before the Appeals Council admits 

additional evidence into the record, it 

will mail a notice to the parties, 

informing them that evidence about 

certain issues was submitted. The 

Appeals Council will give each party a 

reasonable opportunity to comment on 

the evidence and to present other 

evidence that is material to an issue it 

is considering. 

(3) The Appeals Council will 

determine whether the additional 

evidence warrants a new review by a 

hearing officer or whether the Appeals 

Council will consider the additional 

evidence as part of its review of the 

case. 

(c) Individual charged did not file an 

answer. If the representative did not file 

an answer to the charges, the 

representative may not introduce 

evidence that was not considered at the 

hearing. 

■ 11. Amend § 404.1790 by revising 

paragraph (a) and adding paragraph (f) 

to read as follows: 

§ 404.1790 Appeals Council’s decision. 

(a) The Appeals Council will base its 

decision upon the evidence in the 

hearing record and any other evidence 

it may permit on review. The Appeals 

Council will affirm the hearing officer’s 

decision if the action, findings, and 

conclusions are supported by 

substantial evidence. If the hearing 

officer’s decision is not supported by 

substantial evidence, the Appeals 

Council will either: 

(1) Reverse or modify the hearing 

officer’s decision; or 

(2) Return the case to the hearing 

officer for further proceedings. 

* * * * * 

(f) The Appeals Council may 

designate and publish certain final 

decisions as precedent for other actions 

brought under its representative 

conduct provisions. Prior to making a 

decision public, we will remove or 


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Federal Register / Vol. 83, No. 127 / Monday, July 2, 2018 / Rules and Regulations 30857 

redact personally identifiable 

information from the decision. 

■ 12. Amend § 404.1799 by revising 

paragraphs (a), (d)(2), and (f) to read as 

follows: 

§ 404.1799 Reinstatement after 

suspension or disqualification—period of 

suspension not expired. 

(a) After more than one year has 

passed, a person who has been 

suspended or disqualified may ask the 

Appeals Council for permission to serve 

as a representative again. The Appeals 

Council will assign and process a 

request for reinstatement using the same 

general procedures described in 

§ 404.1776. 

* * * * * 

(d) * * * 

(2) If a person was disqualified 

because he or she had been disbarred, 

suspended, or removed from practice for 

the reasons described in § 404.1745(d) 

through (f), the Appeals Council will 

grant a request for reinstatement as a 

representative only if the criterion in 

paragraph (d)(1) of this section is met 

and the disqualified person shows that 

he or she has been admitted (or 

readmitted) to and is in good standing 

with the court, bar, Federal program or 

agency, or other governmental or 

professional licensing authority from 

which he or she had been disbarred, 

suspended, or removed from practice. 

* * * * * 

(f) If the Appeals Council decides not 

to grant the request, it will not consider 

another request before the end of 3 years 

from the date of the notice of the 

previous denial. 

PART 416—SUPPLEMENTAL 

SECURITY INCOME FOR THE AGED, 

BLIND, AND DISABLED 

Subpart O—[Amended] 

■ 13. The authority citation for subpart 

O of part 416 continues to read as 

follows: 

Authority: Secs. 702(a)(5), 1127, and 

1631(d) of the Social Security Act (42 U.S.C. 

902(a)(5), 1320a–6, and 1383(d)). 

■ 14. Revise § 416.1505(b) to read as 

follows: 

§ 416.1505 Who may be your 

representative. 

* * * * * 

(b) You may appoint any person who 

is not an attorney to be your 

representative in dealings with us if the 

person— 

(1) Is capable of giving valuable help 

to you in connection with your claim; 

(2) Is not disqualified or suspended 

from acting as a representative in 

dealings with us; 

(3) Is not prohibited by any law from 

acting as a representative; and 

(4) Is generally known to have a good 

character and reputation. Persons 

lacking good character and reputation, 

include, but are not limited to, persons 

who have a final conviction of a felony 

(as defined by § 404.1506(c) of this 

chapter), or any crime involving moral 

turpitude, dishonesty, false statement, 

misrepresentations, deceit, or theft. 

* * * * * 

■ 15. Amend § 416.1540 follows: 

■ a. Revise paragraphs (b)(2)(vii) and 

(b)(3); 

■ b. Add paragraphs (b)(5) through (10); 

■ c. Revise paragraphs (c)(1) through (6) 

and (c)(7)(ii); 

■ d. Remove paragraph (c)(7)(iii); 

■ e. Revise paragraphs (c)(8) through 

(13); and 

■ f. Add paragraph (c)(14). 

The revisions and additions read as 

follows: 

§ 416.1540 Rules of conduct and 

standards of responsibility for 

representatives. 

* * * * * 

(b) * * * 

(2) * * * 

(vii) Any other factors showing how 

the claimant’s impairment(s) affects his 

or her ability to work. In §§ 416.960 

through 416.969a, we discuss in more 

detail the evidence we need when we 

consider vocational factors. 

(3) Conduct his or her dealings in a 

manner that furthers the efficient, fair, 

and orderly conduct of the 

administrative decision-making process, 

including duties to: 

(i) Provide competent representation 

to a claimant. Competent representation 

requires the knowledge, skill, 

thoroughness, and preparation 

reasonably necessary for the 

representation. A representative must 

know the significant issue(s) in a claim, 

have reasonable and adequate 

familiarity with the evidence in the 

case, and have a working knowledge of 

the applicable provisions of the Social 

Security Act, as amended, the 

regulations, the Social Security Rulings, 

and any other applicable provisions of 

law. 

(ii) Act with reasonable diligence and 

promptness in representing a claimant. 

This includes providing prompt and 

responsive answers to our requests for 

information pertinent to processing of 

the claim. 

(iii) When requested, provide us, in a 

manner we specify, potential dates and 

times that the representative will be 

available for a hearing. We will inform 

the representative how many potential 

dates and times we require to coordinate 

the hearing schedule. 

(iv) Only withdraw representation at 

a time and in a manner that does not 

disrupt the processing or adjudication of 

a claim and that provides the claimant 

adequate time to find new 

representation, if desired. A 

representative should not withdraw 

after we set the time and place for the 

hearing (see § 416.1436) unless the 

representative can show that a 

withdrawal is necessary due to 

extraordinary circumstances, as we 

determine on a case-by-case basis. 

(v) Maintain prompt and timely 

communication with the claimant, 

which includes, but is not limited to, 

reasonably informing the claimant of all 

matters concerning the representation, 

consulting with the claimant on an 

ongoing basis during the entire 

representational period, and promptly 

responding to a claimant’s reasonable 

requests for information. When we 

evaluate whether a representative has 

maintained prompt and timely 

communication with the claimant, we 

will consider the difficulty the 

representative has in locating a 

particular claimant (e.g., because the 

claimant is homeless) and the 

representative’s efforts to keep that 

claimant informed. 

* * * * * 

(5) Disclose in writing, at the time a 

medical or vocational opinion is 

submitted to us or as soon as the 

representative is aware of the 

submission to us, if: 

(i) The representative’s employee or 

any individual contracting with the 

representative drafted, prepared, or 

issued the medical or vocational 

opinion; or 

(ii) The representative referred or 

suggested that the claimant seek an 

examination from, treatment by, or the 

assistance of, the individual providing 

opinion evidence. 

(6) Disclose to us immediately if the 

representative discovers that his or her 

services are or were used by the 

claimant to commit fraud against us. 

(7) Disclose to us whether the 

representative is or has been disbarred 

or suspended from any bar or court to 

which he or she was previously 

admitted to practice, including 

instances in which a bar or court took 

administrative action to disbar or 

suspend the representative in lieu of 

disciplinary proceedings (e.g. 

acceptance of voluntary resignation 

pending disciplinary action). If the 

disbarment or suspension occurs after 

the appointment of the representative, 

the representative will immediately 

disclose the disbarment or suspension 

to us. 


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(8) Disclose to us whether the 

representative is or has been 

disqualified from participating in or 

appearing before any Federal program or 

agency, including instances in which a 

Federal program or agency took 

administrative action to disqualify the 

representative in lieu of disciplinary 

proceedings (e.g. acceptance of 

voluntary resignation pending 

disciplinary action). If the 

disqualification occurs after the 

appointment of the representative, the 

representative will immediately disclose 

the disqualification to us. 

(9) Disclose to us whether the 

representative has been removed from 

practice or suspended by a professional 

licensing authority for reasons that 

reflect on the person’s character, 

integrity, judgment, reliability, or fitness 

to serve as a fiduciary. If the removal or 

suspension occurs after the appointment 

of the representative, the representative 

will immediately disclose the removal 

or suspension to us. 

(10) Ensure that all of the 

representative’s employees, assistants, 

partners, contractors, or any person 

assisting the representative on claims 

for which the representative has been 

appointed, comply with these rules of 

conduct and standards of responsibility 

for representatives, when the 

representative has managerial or 

supervisory authority over these 

individuals or otherwise has 

responsibility to oversee their work. 

This includes a duty to take remedial 

action when: 

(i) The representative’s employees, 

assistants, partners, contractors or other 

individuals’ conduct violates these rules 

of conduct and standards of 

responsibility; and 

(ii) The representative has reason to 

believe a violation of these rules of 

conduct and standards of responsibility 

occurred or will occur. 

(c) * * * 

(1) In any manner or by any means 

threaten, coerce, intimidate, deceive or 

knowingly mislead a claimant, or 

prospective claimant or beneficiary, 

regarding benefits or other rights under 

the Act. This prohibition includes 

misleading a claimant, or prospective 

claimant or beneficiary, about the 

representative’s services and 

qualifications. 

(2) Knowingly charge, collect or 

retain, or make any arrangement to 

charge, collect or retain, from any 

source, directly or indirectly, any fee for 

representational services in violation of 

applicable law or regulation. This 

prohibition includes soliciting any gift 

or any other item of value, other than 

what is authorized by law. 

(3) Make or present, or participate in 

the making or presentation of, false or 

misleading oral or written statements, 

evidence, assertions, or representations 

about a material fact or law concerning 

a matter within our jurisdiction, in 

matters where the representative knows 

or should have known that those 

statements, evidence, assertions or 

representations are false or misleading. 

(4) Through his or her own actions or 

omissions, unreasonably delay or cause 

to be delayed, without good cause (see 

§ 416.1411(b)), the processing of a claim 

at any stage of the administrative 

decision-making process. 

(5) Divulge, without the claimant’s 

consent, except as may be authorized by 

regulations prescribed by us or as 

otherwise provided by Federal law, any 

information we furnish or disclose 

about a claim or prospective claim. 

(6) Attempt to influence, directly or 

indirectly, the outcome of a decision, 

determination, or other administrative 

action by any means prohibited by law, 

or offering or granting a loan, gift, 

entertainment, or anything of value to a 

presiding official, agency employee, or 

witness who is or may reasonably be 

expected to be involved in the 

administrative decision-making process, 

except as reimbursement for 

legitimately incurred expenses or lawful 

compensation for the services of an 

expert witness retained on a noncontingency basis to provide evidence. 

(7) * * * 

(ii) Behavior that has the effect of 

improperly disrupting proceedings or 

obstructing the adjudicative process, 

including but not limited to: 

(A) Directing threatening or 

intimidating language, gestures, or 

actions at a presiding official, witness, 

contractor, or agency employee; 

(B) Providing misleading information 

or misrepresenting facts that affect how 

we process a claim, including, but not 

limited to, information relating to the 

claimant’s work activity or the 

claimant’s place of residence or mailing 

address in matters where the 

representative knows or should have 

known that the information was 

misleading and the facts would 

constitute a misrepresentation; and 

(C) Communicating with agency staff 

or adjudicators outside the normal 

course of business or other prescribed 

procedures in an attempt to 

inappropriately influence the processing 

or outcome of a claim(s). 

(8) Violate any section of the Act for 

which a criminal or civil monetary 

penalty is prescribed. 

(9) Refuse to comply with any of our 

rules or regulations. 

(10) Suggest, assist, or direct another 

person to violate our rules or 

regulations. 

(11) Advise any claimant or 

beneficiary not to comply with any of 

our rules or regulations. 

(12) Knowingly assist a person whom 

we suspended or disqualified to provide 

representational services in a 

proceeding under title XVI of the Act, or 

to exercise the authority of a 

representative described in § 416.1510. 

(13) Fail to comply with our 

sanction(s) decision. 

(14) Fail to oversee the 

representative’s employees, assistants, 

partners, contractors, or any other 

person assisting the representative on 

claims for which the representative has 

been appointed when the representative 

has managerial or supervisory authority 

over these individuals or otherwise has 

responsibility to oversee their work. 

■ 16. Amend § 416.1545 by revising 

paragraphs (d) and (e) and adding 

paragraph (f) to read as follows: 

§ 416.1545 Violations of our requirements, 

rules, or standards. 

* * * * * 

(d) Has been, by reason of 

misconduct, disbarred or suspended 

from any bar or court to which he or she 

was previously admitted to practice (see 

§ 416.1570(a)); 

(e) Has been, by reason of misconduct, 

disqualified from participating in or 

appearing before any Federal program or 

agency (see § 416.1570(a)); or 

(f) Who, as a non-attorney, has been 

removed from practice or suspended by 

a professional licensing authority for 

reasons that reflect on the person’s 

character, integrity, judgment, 

reliability, or fitness to serve as a 

fiduciary. 

■ 17. Amend § 416.1550 by revising 

paragraphs (c), (d), (e)(2), and (f) to read 

as follows: 

§ 416.1550 Notice of charges against a 

representative. 

* * * * * 

(c) We will advise the representative 

to file an answer, within 14 business 

days from the date of the notice, or from 

the date the notice was delivered 

personally, stating why he or she should 

not be suspended or disqualified from 

acting as a representative in dealings 

with us. 

(d) The General Counsel or other 

delegated official may extend the 14-day 

period specified in paragraph (c) of this 

section for good cause in accordance 

with § 416.1411. 

(e) * * * 

(2) File the answer with the Social 

Security Administration, at the address 


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specified on the notice, within the 14- 

day time period specified in paragraph 

(c) of this section. 

(f) If the representative does not file 

an answer within the 14-day time 

period specified in paragraph (c) of this 

section (or the period extended in 

accordance with paragraph (d) of this 

section), he or she does not have the 

right to present evidence, except as may 

be provided in § 416.1565(g). 

■ 18. Revise § 416.1555 to read as 

follows: 

§ 416.1555 Withdrawing charges against a 

representative. 

The General Counsel or other 

delegated official may withdraw charges 

against a representative. We will 

withdraw charges if the representative 

files an answer, or we obtain evidence, 

that satisfies us that we should not 

suspend or disqualify the representative 

from acting as a representative. When 

we consider withdrawing charges 

brought under § 416.1545(d) through (f) 

based on the representative’s assertion 

that, before or after our filing of charges, 

the representative has been reinstated to 

practice by the court, bar, or Federal 

program or Federal agency that 

suspended, disbarred, or disqualified 

the representative, the General Counsel 

or other delegated official will 

determine whether such reinstatement 

occurred, whether it remains in effect, 

and whether he or she is reasonably 

satisfied that the representative will in 

the future act in accordance with the 

provisions of section 206(a) of the Act 

and our rules and regulations. If the 

representative proves that reinstatement 

occurred and remains in effect and the 

General Counsel or other delegated 

official is so satisfied, the General 

Counsel or other delegated official will 

withdraw those charges. The action of 

the General Counsel or other delegated 

official regarding withdrawal of charges 

is solely that of the General Counsel or 

other delegated official and is not 

reviewable, or subject to consideration 

in decisions made under §§ 416.1570 

and 416.1590. If we withdraw the 

charges, we will notify the 

representative by mail at the 

representative’s last known address. 

■ 19. Amend § 416.1565 by revising 

paragraphs (b)(1), (c), (d)(1) and (3), and 

(g)(1) and (3) as follows: 

§ 416.1565 Hearing on charges. 

* * * * * 

(b) Hearing officer. (1) The Deputy 

Commissioner for the Office of Hearings 

Operations or other delegated official 

will assign an administrative law judge, 

designated to act as a hearing officer, to 

hold a hearing on the charges. 

* * * * * 

(c) Time and place of hearing. The 

hearing officer shall mail the parties a 

written notice of the hearing at their last 

known addresses, at least 14 calendar 

days before the date set for the hearing. 

The notice will inform the parties 

whether the appearance of the parties or 

any witnesses will be in person, by 

video teleconferencing, or by telephone. 

The notice will also include 

requirements and instructions for filing 

motions, requesting witnesses, and 

entering exhibits. 

(d) Change of time and place for 

hearing. (1) The hearing officer may 

change the time and place for the 

hearing, either on his or her own 

initiative, or at the request of the 

representative or the other party to the 

hearing. The hearing officer will not 

consider objections to the manner of 

appearance of parties or witnesses, 

unless the party shows good cause not 

to appear in the prescribed manner. To 

determine whether good cause exists for 

extending the deadline, we use the 

standards explained in § 416.1411. 

* * * * * 

(3) Subject to the limitations in 

paragraph (g)(2) of this section, the 

hearing officer may reopen the hearing 

for the receipt of additional evidence at 

any time before mailing notice of the 

decision. 

* * * * * 

(g) Conduct of the hearing. (1) The 

representative or the other party may 

file a motion for decision on the basis 

of the record prior to the hearing. The 

hearing officer will give the 

representative and the other party a 

reasonable amount of time to submit 

any evidence and to file briefs or other 

written statements as to fact and law 

prior to deciding the motion. If the 

hearing officer concludes that there is 

no genuine dispute as to any material 

fact and the movant is entitled to a 

decision as a matter of law, the hearing 

officer may grant the motion and issue 

a decision in accordance with the 

provisions of § 416.1570. 

* * * * * 

(3) The hearing officer will make the 

hearing open to the representative, to 

the other party, and to any persons the 

hearing officer or the parties consider 

necessary or proper. The hearing officer 

will inquire fully into the matters being 

considered, hear the testimony of 

witnesses, and accept any documents 

that are material. 

* * * * * 

■ 20. Revise § 416.1575(b) to read as 

follows: 

§ 416.1575 Requesting review of the 

hearing officer’s decision. 

* * * * * 

(b) Time and place of filing request for 

review. The party requesting review will 

file the request for review in writing 

with the Appeals Council within 14 

business days from the date the hearing 

officer mailed the notice. The party 

requesting review will certify that a 

copy of the request for review and of 

any documents that are submitted have 

been mailed to the opposing party. 

■ 21. Revise § 416.1580(a) to read as 

follows: 

§ 416.1580 Appeals Council’s review of 

hearing officer’s decision. 

(a) Upon request, the Appeals Council 

will give the parties a reasonable time 

to file briefs or other written statements 

as to fact and law, and to request to 

appear before the Appeals Council to 

present oral argument. When oral 

argument is requested within the time 

designated by the Appeals Council, the 

Appeals Council will grant the request 

for oral argument and determine 

whether the parties will appear at the 

oral argument in person, by video 

teleconferencing, or by telephone. If oral 

argument is not requested within the 

time designated by the Appeals Council, 

the Appeals Council may deny the 

request. 

* * * * * 

■ 22. Revise § 416.1585 to read as 

follows: 

§ 416.1585 Evidence permitted on review. 

(a) General. Generally, the Appeals 

Council will not consider evidence in 

addition to that introduced at the 

hearing. However, if the Appeals 

Council finds the evidence offered is 

material to an issue it is considering, it 

may consider that evidence, as 

described in paragraph (b) of this 

section. 

(b) Individual charged filed an 

answer. (1) When the Appeals Council 

finds that additional evidence material 

to the charges is available, and the 

individual charged filed an answer to 

the charges, the Appeals Council will 

allow the party with the information to 

submit the additional evidence. 

(2) Before the Appeals Council admits 

additional evidence into the record, it 

will mail a notice to the parties, 

informing them that evidence about 

certain issues was submitted. The 

Appeals Council will give each party a 

reasonable opportunity to comment on 

the evidence and to present other 

evidence that is material to an issue it 

is considering. 

(3) The Appeals Council will 

determine whether the additional 


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evidence warrants a new review by a 

hearing officer or whether the Appeals 

Council will consider the additional 

evidence as part of its review of the 

case. 

(c) Individual charged did not file an 

answer. If the representative did not file 

an answer to the charges, the 

representative may not introduce 

evidence that was not considered at the 

hearing. 

■ 23. Amend § 416.1590 by revising 

paragraph (a) and adding paragraph (f) 

to read as follows: 

§ 416.1590 Appeals Council’s decision. 

(a) The Appeals Council will base its 

decision upon the evidence in the 

hearing record and any other evidence 

it may permit on review. The Appeals 

Council will affirm the hearing officer’s 

decision if the action, findings, and 

conclusions are supported by 

substantial evidence. If the hearing 

officer’s decision is not supported by 

substantial evidence, the Appeals 

Council will either: 

(1) Reverse or modify the hearing 

officer’s decision; or 

(2) Return a case to the hearing officer 

for further proceedings. 

* * * * * 

(f) The Appeals Council may 

designate and publish certain final 

decisions as precedent for other actions 

brought under its representative 

conduct provisions. Prior to making a 

decision public, we will remove or 

redact personally identifiable 

information from the decision. 

■ 24. Amend § 416.1599 by revising 

paragraphs (a), (d)(2), and (f) to read as 

follows: 

§ 416.1599 Reinstatement after 

suspension or disqualification—period of 

suspension not expired. 

(a) After more than one year has 

passed, a person who has been 

suspended or disqualified may ask the 

Appeals Council for permission to serve 

as a representative again. The Appeals 

Council will assign and process a 

request for reinstatement using the same 

general procedures described in 

§ 416.1576. 

* * * * * 

(d) * * * 

(2) If a person was disqualified 

because he or she had been disbarred, 

suspended, or removed from practice for 

the reasons described in § 416.1545(d) 

through (f), the Appeals Council will 

grant a request for reinstatement as a 

representative only if the criterion in 

paragraph (d)(1) of this section is met 

and the disqualified person shows that 

he or she has been admitted (or 

readmitted) to and is in good standing 

with the court, bar, Federal program or 

agency, or other governmental or 

professional licensing authority from 

which he or she had been disbarred, 

suspended, or removed from practice. 

* * * * * 

(f) If the Appeals Council decides not 

to grant the request, it will not consider 

another request before the end of 3 years 

from the date of the notice of the 

previous denial. 

[FR Doc. 2018–13989 Filed 6–29–18; 8:45 am] 

BILLING CODE 4191–02–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 100 

[Docket No. USCG–2018–0626] 

RIN 1625–AA08 

Special Local Regulation; Wyandotte 

Invites, Detroit River, Trenton Channel, 

Wyandotte, MI 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a special local regulation 

for certain navigable waters of the 

Detroit River, Trenton Channel, 

Wyandotte, MI. This action is necessary 

and is intended to ensure safety of life 

on navigable waters immediately prior 

to, during, and immediately after the 

Wyandotte Invites event. 

DATES: This temporary final rule is 

effective from 8 a.m. until 12:30 p.m. on 

July 15, 2018. 

ADDRESSES: To view documents 

mentioned in this preamble as being 

available in the docket, go to http://

www.regulations.gov, type USCG–2018– 

0626 in the ‘‘SEARCH’’ box and click 

‘‘SEARCH.’’ Click on Open Docket 

Folder on the line associated with this 

rule. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this temporary 

rule, call or email Tracy Girard, 

Prevention Department, Sector Detroit, 

Coast Guard; telephone 313–568–9564, 

or email Tracy.M.Girard@uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations 

CFR Code of Federal Regulations 

DHS Department of Homeland Security 

FR Federal Register 

NPRM Notice of Proposed Rulemaking 

§ Section 

COTP Captain of the Port 

U.S.C. United States Code 

II. Background Information and 

Regulatory History 

The Coast Guard is issuing this 

temporary rule without prior notice and 

opportunity to comment pursuant to 

authority under section 4(a) of the 

Administrative Procedure Act (APA) (5 

U.S.C. 553(b)). This provision 

authorizes an agency to issue a rule 

without prior notice and opportunity to 

comment when the agency for good 

cause finds that those procedures are 

‘‘impracticable, unnecessary, or contrary 

to the public interest.’’ Under 5 U.S.C. 

553(b)(B), the Coast Guard finds that 

good cause exists for not publishing a 

notice of proposed rulemaking (NPRM) 

with respect to this rule because doing 

so would be impracticable. The Coast 

Guard just recently received the final 

details of this rowing event, Wyandotte 

Invites, which does not provide 

sufficient time to publish an NPRM 

prior to the event. Thus, delaying the 

effective date of this rule to wait for a 

comment period to run would be 

contrary to public interest because it 

would inhibit the Coast Guard’s ability 

to protect participants, mariners and 

vessels from the hazards associated with 

this event. It is impracticable to publish 

an NPRM because we lack sufficient 

time to provide a reasonable comment 

period and then consider those 

comments before issuing this rule. 

Under 5 U.S.C. 553(d)(3), the Coast 

Guard finds that good cause exists for 

making this rule effective less than 30 

days after publication in the Federal 

Register. Delaying the effective date of 

this rule would inhibit the Coast 

Guard’s ability to protect participants, 

mariners and vessels from the hazards 

associated with this event. 

III. Legal Authority and Need for Rule 

The Coast Guard is issuing this rule 

under authority in 33 U.S.C. 1233. The 

Captain of the Port Detroit (COTP) has 

determined that the likely combination 

of recreation vessels, commercial 

vessels, and an unknown number of 

spectators in close proximity to a youth 

rowing regatta along the water pose 

extra and unusual hazards to public 

safety and property. Therefore, the 

COTP is establishing a special local 

regulation around the event location to 

help minimize risks to safety of life and 

property during this event. 

IV. Discussion of the Rule 

This rule establishes a temporary 

special local regulation from 8 a.m. until 

12:30 p.m. on July 15, 2018. In light of 

the aforementioned hazards, the COTP 

has determined that a special local 

regulation is necessary to protect 


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