[Federal Register Volume 83, Number 158 (Wednesday, August 15, 2018)]
[Rules and Regulations]
[Pages 40451-40453]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-17547]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA-2018-0033]
RIN 0960-AI23


Making Permanent the Attorney Advisor Program

AGENCY: Social Security Administration.

ACTION: Final rule.

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SUMMARY: We are making permanent the attorney advisor program, which 
has proved to be an integral tool in providing timely decisions to the 
public while maximizing the use of our administrative law judges 
(ALJs). The attorney advisor initiative permits some attorney advisors 
to develop claims, including holding prehearing conferences, and, in 
cases in which the documentary record clearly establishes that a fully 
favorable decision is warranted, issue fully favorable decisions before 
a hearing is conducted. We expect that by making the attorney advisor 
program permanent, we will be able to continue to reduce the number of 
pending claims at the hearing level of our administrative review 
process and provide more timely service to claimants.

DATES: This final rule is effective August 15, 2018.

FOR FURTHER INFORMATION CONTACT: Susan Swansiger, Office of Hearings 
Operations, Social Security Administration, 5107 Leesburg Pike, Falls 
Church, VA 22041, (703) 605-8500. For information on eligibility or 
filing for benefits, call our national toll-free number, 800-772-1213 
or TTY 800-325-0778, or visit our internet site, Social Security 
Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: 

Background of the Attorney Advisor Program

    Under the attorney advisor program, certain attorney advisors may 
develop claims and, in appropriate cases, issue

[[Page 40452]]

fully favorable decisions before a hearing.
    We first created the attorney advisor program in 1995 through 
notice and comment rulemaking for a limited period of two years.\1\ The 
program's success prompted us to renew it several times until it 
expired in April 2001.\2\ On August 9, 2007, we published an interim 
final rule that reinstituted the attorney advisor program in order to 
provide more timely service to the increasing number of applicants for 
Social Security disability benefits and Supplemental Security Income 
payments based on disability.\3\ We considered the public comments we 
received on the interim final rule, and on March 3, 2008, we issued a 
final rule without change.\4\
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    \1\ 60 FR 34126 (June 30, 1995).
    \2\ 62 FR 35073 (extending expiration date to June 30, 1998); 63 
FR 35515 (extending expiration date to April 1, 1999); 64 FR 13677 
(extending expiration date to April 1, 2000), 64 FR 51892 (extending 
expiration date to April 2, 2001).
    \3\ 72 FR 44763.
    \4\ 73 FR 11349.
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    As before, we intended the attorney advisor program to be a 
temporary modification to our procedures, but with the potential to 
become a permanent program. Therefore, we included in sections 
404.942(g) and 416.1442(g) of the interim final rule a provision that 
the program would end on August 10, 2009, unless we decided to either 
terminate the rule earlier or extend it beyond that date by publication 
of a final rule in the Federal Register. Since that time, we have 
periodically extended the sunset date.\5\ The current sunset date for 
the program is August 2, 2019.\6\
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    \5\ 74 FR 33327 (extending the expiration date to August 10, 
2011); 76 FR 18383 (extending the expiration date to August 9, 
2013); 78 FR 45459 (extending the expiration date to August 7, 
2015); 80 FR 31990 (extending the expiration date to August 4, 
2017); 82 FR 34400 (extending the expiration date to February 5, 
2018); and 83 FR 711 (extending the expiration date to August 3, 
2018).
    \6\ 83 FR 28992 (extending the expiration date to August 2, 
2019).
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    We explained in the 2008 final rule that the number of requests for 
hearings had increased significantly in recent years. From 2008 to the 
present, the number of pending hearing requests has continued to remain 
high, and we anticipate that we will receive several hundred thousand 
hearing requests in fiscal year 2018 and in fiscal year 2019.\7\ To 
preserve the maximum degree of flexibility and manage our hearings-
level workloads effectively, we have decided to make the attorney 
advisor rule permanent.
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    \7\ Our budget estimates indicate that we expect to receive 
approximately 582,000 hearing requests in fiscal year 2018 and 
578,000 in fiscal year 2019 (available at: https://www.ssa.gov/budget/FY19Files/2019CJ.pdf).
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Time Savings and Other Benefits of Making the Program Permanent

    Under the attorney advisor program, attorney advisors conduct 
certain prehearing proceedings and, when the record clearly establishes 
that a fully favorable decision is warranted, may issue a fully 
favorable decision before an ALJ holds a hearing. Thus, the attorney 
advisor program allows us to issue fully favorable decisions more 
quickly in appropriate cases, which, in turn, allows claimants to 
receive disability benefits under title II or disability payments under 
title XVI months, or perhaps even a year, earlier than if they had to 
wait for a hearing before an ALJ. As well, since attorney advisors may 
issue fully favorable decisions in cases that would otherwise require 
an ALJ to hold a hearing and issue a decision, the program allows ALJs 
to spend their time adjudicating more complex cases.
    As an added benefit of the program, even if an attorney advisor 
cannot issue a fully favorable decision after conducting prehearing 
proceedings, the summary the attorney advisor drafts during his or her 
review can be valuable to the ALJ, helping to expedite the hearing 
process. Moreover, prehearing proceedings by an attorney advisor do not 
delay the scheduling of a hearing unless a fully favorable decision is 
in process. Thus, if the attorney advisor is unable to issue a fully 
favorable decision after conducting prehearing proceedings, the case 
returns to its original place in line and continues under our standard 
hearing process, with no delays caused by the attorney advisor's 
review. For these reasons, making the attorney advisor program 
permanent benefits claimants by giving them a chance to receive a fully 
favorable decision more quickly and by expediting the overall hearings 
process, and it benefits ALJs and their support staff by allowing them 
to receive helpful case summaries from attorney advisors who assist 
with developing the record in cases that are selected for prehearing 
proceedings but that still require a hearing before an ALJ.

Regulatory Procedures

Justification for Issuing a Final Rule Without Notice and Comment

    We follow the Administrative Procedure Act (APA) rulemaking 
procedures specified in 5 U.S.C. 553 when we develop regulations. 
Generally, the APA requires that an agency provide prior notice and 
opportunity for public comment before issuing a final rule. The APA 
provides exceptions to its notice and public comment procedures when an 
agency finds there is good cause for dispensing with such procedures 
because they are impracticable, unnecessary, or contrary to the public 
interest.
    We find that there is good cause under 5 U.S.C. 553(b)(B) to issue 
this regulatory change as a final rule without prior public comment. We 
find that prior public comment is unnecessary because this final rule 
merely removes the sunset provision of 20 CFR 404.942 and 416.1442 and 
does not make any substantive changes to the attorney advisor program. 
Importantly, we developed the attorney advisor program through notice 
and comment rulemaking in 1995, and we requested public comments again 
when we reinstituted the program, without change, in 2007. We received 
only three public comments in response to our 2007 interim final rule, 
and two of them supported the rule. The current rules expressly provide 
that we may extend the program beyond the current expiration date by 
notice of a final rule in the Federal Register. Accordingly, in light 
of the technical nature of the rule, and because we requested and 
addressed public comments on the attorney advisor program on two prior 
occasions, we find there is good cause to issue this final rule without 
prior public comment.
    In addition, because we are not making any substantive changes to 
the attorney advisor program, we find that there is 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). To ensure that we have 
uninterrupted authority to use attorney advisors to address the number 
of pending cases at the hearing level, we find that it is in the public 
interest to make this final rule effective on the date of publication.

Executive Order 12866 as Supplemented by Executive Order 13563

    We consulted with the Office of Management and Budget (OMB) and 
determined that this final rule meets the requirements for a 
significant regulatory action under Executive Order (E.O.) 12866, as 
supplemented by E.O. 13563. Therefore, OMB has reviewed this final 
rule.

Executive Order 13771

    This rule is not subject to the requirements of Executive Order 
13771 because it is administrative in nature

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and results in no more than de minimis costs.

Regulatory Flexibility Act

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

Paperwork Reduction Act

    These rules do not create any new or affect any existing 
collections and, therefore, do not require Office of Management and 
Budget approval under the Paperwork Reduction Act.

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social 
Security--Disability Insurance; 96.002, Social Security--Retirement 
Insurance; 96.004, Social Security--Survivors Insurance; 96.006, 
Supplemental Security Income.)

List of Subjects

20 CFR Part 404

    Administrative practice and procedure; Blind; Disability benefits; 
Old-age, Survivors and Disability Insurance; Reporting and 
recordkeeping requirements; Social security.

20 CFR Part 416

    Administrative practice and procedure; Reporting and recordkeeping 
requirements; Supplemental Security Income (SSI).


Nancy A. Berryhill,
Acting Commissioner of Social Security.

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

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE

    (1950- )

Subpart J--[Amended]

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

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


Sec.  404.942   [Amended]

0
2. In Sec.  404.942, remove paragraph (g).

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

Subpart N--[Amended]

0
3. The authority citation for subpart N continues to read as follows:

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


Sec.  416.1442   [Amended]

0
4. In Sec.  416.1442, remove paragraph (g).

[FR Doc. 2018-17547 Filed 8-14-18; 8:45 am]
 BILLING CODE 4191-02-P