Federal Register Vol No Wednesday January Rules and Regulations by igf15841

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									                                                        Federal Register / Vol. 71, No. 11 / Wednesday, January 18, 2006 / Rules and Regulations                                                                                             2871

                                                                         APPENDIX A TO PART 11.—FEE SCHEDULE FOR FY 2006—Continued
                                                        State                                                                                        County                                                                           (Fee/acre/yr)

                                                                                   BIG HORN ............................................................................................................................                      21.08
                                                                                   CROOK.
                                                                                   PARK.
                                                                                   TETON.
                                                                                   WESTON.
                                       ALL OTHER ZONES .......................     ................................................................................................................................................            5.92



                                       [FR Doc. 06–400 Filed 1–17–06; 8:45 am]                     Electronic Version                                                              SSA. Under the Act as amended, a
                                       BILLING CODE 6717–01–P                                        The electronic file of this document is                                       representative who has been
                                                                                                   available on the date of publication in                                         disqualified or suspended from
                                                                                                   the Federal Register at http://                                                 appearing before SSA as a result of
                                                                                                   www.gpoaccess.gov/fr/index.html.                                                collecting or receiving a fee in excess of
                                       SOCIAL SECURITY ADMINISTRATION                                                                                                              the amount authorized shall be barred
                                                                                                   Background                                                                      from appearing before SSA as a
                                       20 CFR Parts 404 and 416                                       Section 206(a)(1) of the Social                                              representative until full restitution is
                                                                                                   Security Act (the Act) provides that                                            made to the claimant and, thereafter,
                                       RIN 0960–AG15                                               attorneys and non-attorneys may                                                 may be considered for reinstatement
                                                                                                   represent claimants before SSA. Prior to                                        only under such rules as the
                                       Representation of Parties;                                  enactment of the SSPA, Public Law                                               Commissioner may prescribe.
                                       Recognition, Disqualification, and                          108–203, on March 2, 2004, section
                                       Reinstatement of Representative                                                                                                             Regulatory Provisions Implementing
                                                                                                   206(a)(1) specified that ‘‘[a]n attorney in
                                                                                                                                                                                   SSPA Section 205 and Making Related
                                                                                                   good standing who is admitted to
                                       AGENCY:    Social Security Administration.                                                                                                  Changes
                                                                                                   practice before the highest court of the
                                       ACTION:   Final rules.                                      State, Territory, District, or insular                                            As amended, section 206(a)(1) of the
                                                                                                   possession of his residence or before the                                       Act identifies certain specific bases
                                       SUMMARY: We are revising our                                                                                                                upon which, after notice and
                                                                                                   Supreme Court of the United States or
                                       regulations to identify additional bases                    the inferior Federal courts’’ is entitled to                                    opportunity for hearing, we may refuse
                                       upon which we may bring charges to                          represent claimants before SSA. Section                                         to recognize an attorney as a
                                       disqualify an individual from acting as                     206(a)(1) also authorized SSA to                                                representative or disqualify an attorney
                                       a representative before the Social                          prescribe rules and regulations                                                 whom we have already recognized as a
                                       Security Administration (SSA), and to                       governing recognition of individuals                                            representative. We are implementing
                                       set forth the conditions under which we                     other than attorneys.                                                           these statutory provisions by revising
                                       will reinstate an individual whom we                           Section 205 of the SSPA amended                                              our regulations at 20 CFR 404.1745 and
                                       have disqualified as a representative                       section 206(a)(1) of the Act with respect                                       416.1545, which describe the
                                       because the individual collected or                         to the recognition and disqualification                                         circumstances in which we may file
                                       received, and retains, a fee in excess of                   of certain attorneys as claimants’                                              charges seeking to suspend or disqualify
                                       the amount we authorized. These final                       representatives. As amended, section                                            an individual from acting in a
                                       rules revise our regulations on the                         206(a)(1) provides that the                                                     representational capacity before us.
                                       representation of parties to implement                      Commissioner of Social Security (the                                            Specifically, we are revising these
                                       section 205 of the Social Security                          Commissioner), after due notice and                                             sections to expand the stated bases upon
                                       Protection Act of 2004 (SSPA) and to                        opportunity for hearing, may refuse to                                          which we may file such charges to
                                       make additional changes in these                            recognize as a representative, and may                                          include those in which we have
                                       regulations that relate to the changes                      disqualify a representative already                                             evidence that a representative has been,
                                       required by this legislation. The rules                     recognized, any attorney who has been                                           by reason of misconduct—
                                       also make technical changes in our                          disbarred or suspended from any court                                             • Disbarred or suspended from any
                                       regulations on the representation of                        or bar to which he or she was previously                                        court or bar to which he or she was
                                       parties.                                                    admitted to practice or who has been                                            previously admitted to practice, or
                                       DATES:These rules are effective                             disqualified from participating in or                                             • Disqualified from participating in or
                                       February 17, 2006.                                          appearing before any Federal program or                                         appearing before any Federal program or
                                                                                                   agency. Section 206(a)(1) as amended                                            agency.
                                       FOR FURTHER INFORMATION CONTACT:
                                                                                                   further provides that the Commissioner                                            Sections 404.1745 and 416.1545 as a
                                       Richard Bresnick, Social Insurance                                                                                                          whole pertain to our bringing of charges
                                                                                                   may also, after due notice and
                                       Specialist, Office of Regulations, Social                                                                                                   that may seek either to suspend or to
                                                                                                   opportunity for hearing, refuse to
                                       Security Administration, 100 Altmeyer                                                                                                       disqualify a representative. As we
                                                                                                   recognize, and may disqualify, as a non-
                                       Building, 6401 Security Boulevard,                                                                                                          explain below in connection with
                                                                                                   attorney representative, any attorney
                                       Baltimore, MD 21235–6401, (410) 965–                                                                                                        revisions we are making in our
                                                                                                   who has been disbarred or suspended
                                       1758 or TTY (410) 966–5609. For                                                                                                             regulations dealing with the decisions
                                                                                                   from any court or bar to which he or she
                                       information on eligibility or filing for                                                                                                    hearing officers make on charges
                                                                                                   was previously admitted to practice.
                                       benefits, call our national toll-free                          Section 205 of the SSPA also                                                 brought against representatives (20 CFR
                                       number, 1–800–772–1213 or TTY 1–
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                                                                                                   amended section 206(a)(1) of the Act                                            404.1770 and 416.1570),
                                       800–325–0778, or visit our Internet site,                   with respect to reinstatement of certain                                        disqualification is the sole sanction
                                       Social Security Online, at http://                          individuals (whether or not they are                                            available if the charges against a
                                       www.socialsecurity.gov.                                     attorneys) who have been disqualified                                           representative are sustained because the
                                       SUPPLEMENTARY INFORMATION:                                  or suspended from appearing before                                              representative has been, by reasons of


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                                       2872             Federal Register / Vol. 71, No. 11 / Wednesday, January 18, 2006 / Rules and Regulations

                                       misconduct, disbarred or suspended                      recognition’’ of non-attorney                          individual has been disbarred,
                                       from any court or bar to which he or she                representatives and to require such                    suspended or disqualified by a court,
                                       was previously admitted to practice or                  representatives to ‘‘show that they are of             bar, Federal program or agency. One
                                       disqualified from participating in or                   good character and in good repute’’ and                factor we will consider in determining
                                       appearing before any Federal program or                 capable of providing claimants valuable                whether to bring charges is whether the
                                       agency.                                                 services. Under this rule, if we                       individual has been reinstated by the
                                          Sections 404.1745 and 416.1545, as                   determine, after providing due notice                  court, bar, Federal program or agency
                                       revised and as they previously existed,                 and opportunity for a hearing, that a                  that disbarred, suspended or
                                       apply with respect to both attorney and                 non-attorney individual has been                       disqualified the individual.
                                       non-attorney representatives. Under                     disqualified from participating in or                  Reinstatement will not necessarily
                                       these sections as revised, we have                      appearing before a Federal program or                  preclude the bringing of charges.
                                       authority to bring charges to disqualify                agency for reasons of misconduct, we                   Further, we may also bring charges if
                                       a non-attorney representative if we have                will disqualify the individual as having               the disbarment, suspension or
                                       evidence that the representative has                    failed to show that he or she is of good               disqualification by a court, bar, Federal
                                       been, by reason of misconduct—                          character and in good repute and will                  program or agency became final prior to
                                          • Disbarred or suspended from any                    thereafter, absent reinstatement in                    the enactment of section 205 of the
                                       court or bar to which he or she was                     accordance with the provisions of 20                   SSPA.
                                       previously admitted to practice, or                     CFR 404.1799 and 416.1599, refuse to                      We are revising 20 CFR 404.1755 and
                                          • Disqualified from participating in or              recognize the individual as a                          416.1555, the sections of our regulations
                                       appearing before any Federal program or                 representative. The effect of this rule is             that deal with the withdrawal of charges
                                       agency.                                                 to require a non-attorney whom we                      that have been filed against a
                                          As amended by the SSPA, section                      charge with having been disqualified                   representative, to clarify the existing
                                       206(a)(1) of the Act specifically provides              from participating in or appearing                     provisions and to set forth specific
                                       that, after providing due notice and an                 before a Federal program or agency for                 criteria we apply in determining
                                       opportunity for hearing, SSA ‘‘may                      reasons of misconduct to show, in                      whether to withdraw charges where we
                                       refuse to recognize, and may disqualify,                accordance with our rules at 20 CFR                    have filed charges against a
                                       as a non-attorney representative any                    404.1750ff. and 416.1550ff. on hearing                 representative based on disbarment,
                                       attorney who has been disbarred or                      and deciding charges against                           suspension or disqualification by a
                                       suspended from any court or bar to                      representatives, that he or she has not                court, bar or Federal program or agency
                                       which he or she was previously                          been disqualified from participating in                and subsequently learn that the
                                       admitted to practice.’’ Thus, the Act                   or appearing before a Federal program                  representative has been reinstated by
                                       provides that disbarment or suspension                  or agency for reasons of misconduct and                the court, bar or Federal program or
                                       by a court or bar may be a basis for                    is thus, in that respect, of good character            agency that took the action against the
                                       disqualifying an individual from                        and in good repute.                                    representative. We describe these
                                       representational functions before SSA                      This rule codifies a practice we                    revisions and our reasons for making
                                       irrespective of whether the individual                  currently apply under Program                          them below under Public Comments.
                                       seeks to represent individuals as an                    Operations Manual System section GN                       Under the Act as amended by the
                                       attorney or non-attorney. Although it                   03970.011, which sets forth a non-                     SSPA, we have discretionary authority
                                       provides that we may refuse to                          exclusive list of circumstances in which               to refuse to permit an individual to
                                       recognize or disqualify an attorney who                 we may bring charges (under                            function as a representative before us
                                       has been disqualified from participating                §§ 404.1745 and 416.1545) to suspend                   because that individual has been
                                       in or appearing before a Federal                        or disqualify a non-attorney from                      disbarred, suspended or disqualified by
                                       program or agency, the Act as amended                   practice before us for lack of good                    a court, bar or Federal program or
                                       does not also state that we may refuse                  character and reputation. We believe we                agency. To implement that authority, we
                                       to recognize a non-attorney (or former                  should codify that disqualification by a               are revising §§ 404.1770 and 416.1570 to
                                       attorney) who has been disqualified                     Federal program or agency may be a                     explain that in deciding whether to
                                       from participating in or appearing                      basis for bringing charges against a non-              impose that sanction we will consider
                                       before any Federal program or agency.                   attorney representative because the Act                the reasons for the disbarment,
                                       These final rules include a rule making                 as amended by the SSPA is silent on                    suspension, or disqualification action of
                                       disqualification from participating in or               that issue, even though it provides that               the court, bar or Federal program or
                                       appearing before any Federal program or                 we may bring charges against a non-                    agency and will not disqualify the
                                       agency a basis for bringing charges to                  attorney for disbarment or suspension                  individual from acting as a
                                       disqualify a non-attorney in order to                   by a court or bar. Our codification of                 representative before SSA if the court,
                                       make our rules, with respect to                         this particular basis for bringing charges             bar, or Federal program or agency action
                                       recognition of non-attorneys, consistent                based on a lack of good character and                  was taken for reasons unrelated to
                                       with our rules for attorneys. By making                 reputation does not limit our discretion               misconduct (e.g., solely for
                                       this a basis for bringing charges against               to bring charges against a non-attorney                administrative reasons such as failure to
                                       non-attorneys as well as attorneys, we                  representative, as we do at present,                   pay dues or failure to complete
                                       ensure that the additional protections                  whenever we believe that we have                       continuing legal education
                                       provided by the SSPA are available for                  evidence that a non-attorney fails to                  requirements). Sections 404.1770 and
                                       all claimants, regardless of whether                    meet the qualification requirement                     416.1570 as revised also explain that
                                       their representatives are attorneys or                  concerning good character and                          this exception to disqualification will
                                       non-attorneys.                                          reputation included in the provisions of               not apply if the administrative action
                                          We are promulgating this rule                        §§ 404.1705 and 416.1505 on ‘‘Who may                  was taken by the court, bar or Federal
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                                       regarding non-attorney representatives                  be your representative.’’                              program or agency in lieu of
                                       under the general authority of the                         Under §§ 404.1745 and 416.1545 as                   disciplinary proceedings (e.g., the
                                       Commissioner, as set forth in section                   revised, we have discretion in                         acceptance of a voluntary resignation
                                       206(a)(1) of the Act, to prescribe rules                determining whether to bring charges                   pending disciplinary action), and that
                                       and regulations ‘‘governing the                         when we have evidence that an                          although we will consider the reasons


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                                                        Federal Register / Vol. 71, No. 11 / Wednesday, January 18, 2006 / Rules and Regulations                                         2873

                                       for the disbarment, suspension, or                      our Office of Hearings and Appeals for                 has collected or received, and retains, a
                                       disqualification action in determining                  permission to serve as a representative                fee in excess of the amount authorized.
                                       whether to disqualify an individual                     again and the Appeals Council decides                  As revised, §§ 404.1790 and 416.1590
                                       from appearing before us as a                           that it is reasonable to expect that the               provide that the Appeals Council may
                                       representative, we will not re-examine                  individual will, in the future, act in                 not modify a hearing officer’s decision
                                       or revise the factual or legal conclusions              accordance with the provisions of                      to impose a suspension, instead of a
                                       that led to the disbarment, suspension                  section 206(a) of the Act and our rules                disqualification, when disqualification
                                       or disqualification action.                             and regulations. We cannot ensure that                 is the only sanction available under
                                          As revised, §§ 404.1770 and 416.1570                 reinstatement is warranted on that basis               §§ 404.1770 and 416.1570.
                                       also explain what we mean by the terms                  in cases in which the sanction imposed                    We are also revising our rules on
                                       ‘‘disqualified,’’ ‘‘Federal program,’’ and              by us is a suspension. Based on the                    reinstatement in §§ 404.1799 and
                                       ‘‘Federal agency’’ for the purposes of                  above, and for reasons further explained               416.1599 to provide that, if the
                                       deciding whether an individual has                      below under Public Comments, we                        representative has been disqualified
                                       been disqualified from participating in                 believe that disqualification is the only              because he or she was disbarred or
                                       or appearing before any Federal program                 appropriate sanction where charges are                 suspended from a court or bar, the
                                       or agency. For that purpose,                            sustained because we find that a                       Appeals Council will grant
                                       ‘‘disqualified’’ refers to any action that              representative has been, by reason of                  reinstatement to the individual as a
                                       prohibits an individual from                            misconduct, disbarred, suspended or                    representative only if the individual not
                                       participating in or appearing before the                disqualified by a court, bar or Federal                only satisfies the Council with respect
                                       program or agency, regardless of how                    program or agency.                                     to the required expectation of future
                                       long the prohibition lasts or the specific                 We are also revising §§ 404.1770 and                behavior, but also shows that he or she
                                       terminology used. The program or                        416.1570 to state that, if the charges                 has been admitted (or readmitted) to
                                       agency need not use the term                            against the representative are sustained               and is in good standing with the court
                                       ‘‘disqualified’’ to describe the action.                because the representative has collected               or bar from which he or she had been
                                       For example, an agency may use                          or received, and retains, a fee for                    disbarred or suspended. This provision
                                       analogous terms such as ‘‘suspend,’’                    representational services in excess of                 ensures that an individual will not be
                                       ‘‘decertify,’’ ‘‘exclude,’’ ‘‘expel,’’ or               the amount authorized, disqualification                reinstated as a representative unless the
                                       ‘‘debar’’ to describe the individual’s                  will be the only sanction available. This              individual can satisfy the court or bar
                                       disqualification from participating in                  change is intended to ensure that such                 that disbarred or suspended the
                                       the program or the agency. For the                      a representative is barred from                        individual that he or she is fit to act in
                                       purposes of deciding whether an                         appearing before SSA until full                        a representational capacity again.
                                       individual has been disqualified from                   restitution has been made, as required                    Sections 404.1799 and 416.1599 as
                                       participating in or appearing before any                by the Act as amended by the SSPA.                     revised include a similar rule for
                                       Federal program or agency, ‘‘Federal                    Sections 404.1770 and 416.1570 as                      reinstatement of a representative who
                                       program’’ refers to any program                         revised recognize that restitution is                  has been disqualified because he or she
                                       established by an Act of Congress or                    required only where the representative                 was disqualified from participating in or
                                       administered by a Federal agency and                    has not already made full restitution at               appearing before any Federal program or
                                       ‘‘Federal agency’’ refers to any authority              the time at which we sustain charges of                agency. This rule provides that such an
                                       of the executive branch of the                          collecting or receiving an unauthorized                individual must not only satisfy the
                                       Government of the United States.                        fee. The representative ‘‘retains’’ an                 Appeals Council with respect to the
                                          As previously noted, we are also                     unauthorized fee that has been collected               required expectation of future behavior,
                                       revising §§ 404.1770 and 416.1570 to                    or received if full restitution has not                but also show that he or she is once
                                       provide that disqualification will be the               been made for any reason. If a                         again qualified to participate in or
                                       only sanction that may be applied if                    representative makes full restitution                  appear before that Federal program or
                                       charges against a representative                        before the charges against the                         agency.
                                       (attorney or non-attorney) are sustained                representative have been sustained, we                    As revised, §§ 404.1799 and 416.1599
                                       because the representative has been, by                 are not precluded from finding that the                also state that, if a representative has
                                       reason of misconduct, disbarred or                      representative has charged, collected, or              been disqualified as a result of
                                       suspended from any court or bar to                      retained a fee in violation of                         collecting or receiving, and retaining, a
                                       which he or she was previously                          §§ 404.1740(c)(2) and/or 416.1540(c)(2),               fee for representational services in
                                       admitted to practice or disqualified from               and suspending or disqualifying that                   excess of the amount authorized, full
                                       participating in or appearing before any                representative from practice.                          restitution of the excess fee must be
                                       Federal program or agency. The Act, as                     We are revising 20 CFR 404.1790 and                 made before the person may be
                                       amended by the SSPA, states only that                   416.1590, which deal with decisions                    considered for reinstatement. This
                                       we may ‘‘refuse to recognize’’ and,                     made by the Appeals Council where a                    provision implements the provision of
                                       where recognition has already occurred,                 party to the hearing requests review of                the SSPA requiring us to bar from
                                       ‘‘disqualify’’ an individual who has                    a hearing officer’s decision in a sanction             appearing before us, until full
                                       been disbarred, suspended or                            case, to conform these sections to the                 restitution is made, a representative
                                       disqualified by a court, bar or Federal                 changes made in §§ 404.1770 and                        who has been disqualified or suspended
                                       program or agency. Under our rules on                   416.1570 to limit the sanction available               from appearing before us as a result of
                                       reinstatement, a suspended                              to disqualification where charges are                  collecting or receiving a fee in excess of
                                       representative is automatically                         sustained either because the                           the amount authorized.
                                       reinstated at the end of the period of                  representative has been, by reason of
                                       suspension (20 CFR 404.1797 and                         misconduct, disbarred or suspended                     Other Changes
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                                       416.1597). By contrast, under                           from any court or bar to which he or she                 We are making a technical change to
                                       §§ 404.1799 and 416.1599 of our rules,                  was previously admitted to practice or                 20 CFR 404.1750(e)(2) and
                                       if an individual has been disqualified,                 disqualified from participating in or                  416.1550(e)(2), which explain how a
                                       reinstatement can occur only if the                     appearing before any Federal program or                representative must answer a notice
                                       individual asks the Appeals Council of                  agency, or because the representative                  containing a statement of charges. Our


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                                       2874             Federal Register / Vol. 71, No. 11 / Wednesday, January 18, 2006 / Rules and Regulations

                                       rules have heretofore directed that the                 detailed, we have condensed,                           suspension or disqualification for
                                       answer be filed with Special Counsel                    summarized, or paraphrased them                        misconduct are sustained in order to
                                       Staff in SSA’s Office of Hearings and                   below. However, we have tried to                       ensure that we have an opportunity to
                                       Appeals. This component no longer                       summarize the views presented in these                 determine if reinstatement is warranted.
                                       exists. (See 68 FR 59231 and 68 FR                      comments accurately and to respond to                  We believe it is mandatory that we have
                                       61240.) The notice containing a                         the significant issues raised in the                   the opportunity to decide that issue in
                                       statement of charges provides specific                  comments that were within the scope of                 these cases, considering the seriousness
                                       instructions on how and where to file an                the proposed rules. We have not                        of the representative’s offense in
                                       answer. Therefore, we are revising this                 summarized the comments submitted by                   instances in which we have sustained
                                       rule to reflect that the representative                 the two individuals because those                      charges of disbarment, suspension or
                                       must file the answer with SSA, at the                   comments were not within the scope of                  disqualification for misconduct by the
                                       address specified in the notice, within                 the proposed rulemaking.                               representative.
                                       the 30-day time period.                                    Comment: The organization expressed                    SSA’s decision to disqualify
                                         We are also making technical changes                  support for our proposal to make                       representatives who have been adjudged
                                       in §§ 404.1755 and 416.1555. These                      disqualification from appearing before                 to have committed misconduct by a
                                       technical changes are in addition to the                any Federal program or agency a basis                  court, bar or Federal program or agency
                                       previously noted changes made to these                  for bringing charges to disqualify non-                is also consistent with SSA’s long-
                                       sections (i.e., the clarification of existing           attorneys as well as attorneys.                        standing policy and practice. Social
                                       provisions and inclusion of the criteria                   Response: Comment noted.                            Security Ruling (SSR) 74–29 stated the
                                       we apply in deciding whether to                            Comment: Observing that the                         policy that SSA could disqualify non-
                                       withdraw charges when we learn of the                   proposed rules stated in                               attorney representatives who had been
                                       reinstatement of a representative after                 §§ 404.1770(a)(3)(ii) and                              disbarred by a court because such a
                                       we file charges against the                             416.1570(a)(3)(ii) that disqualification               disbarment would appear to be
                                       representative based on disbarment,                     would be the sole sanction available if                inconsistent with the requirement in
                                       suspension, or disqualification for                     charges against a representative are                   section 206(a)(1) of the Act that a non-
                                       misconduct). The technical changes we                   sustained because the representative has               attorney have a good character and be in
                                       are making in §§ 404.1755 and 416.1555                  been disbarred or suspended from a                     good repute to be eligible to practice
                                       include specifying that the Deputy                      court or bar or disqualified from                      before SSA. Program Operations Manual
                                       Commissioner for Disability and Income                  participating in or appearing before any               System section GN 03970.011 also states
                                       Security Programs, or his or her                        Federal program or agency, and that the                that suspension or disbarment by a
                                       designee is, as the official who decides                statutory language says that SSA ‘‘may’’               court or disqualification by a Federal
                                       to initiate a representative sanction                   refuse to recognize an individual in                   agency is evidence that a non-attorney
                                       proceeding, also the official who may                   such instances, the commenter suggests                 representative is not qualified to be a
                                       withdraw charges against a                              that the final rules explain why SSA has               representative under the good character
                                       representative. This change is needed                   decided to make disqualification                       and reputation requirement.
                                       because questions have arisen about                     mandatory.                                                The appropriate place to set forth the
                                       who in the agency has authority to                         Response: The rules make                            explanation for regulatory provisions is
                                       withdraw charges. As we discuss below                   disqualification mandatory only if SSA                 in the preambles to rules, not in the
                                       under Public Comments, we are also                      has brought and sustained charges based                rules themselves. We have explained in
                                       making additional technical changes in                  on disbarment, suspension or                           the preamble to the proposed rules, and
                                       these sections to clarify our existing                  disqualification due to misconduct. SSA                above, the rationale for the provision
                                       practices and rules regarding the                       has exercised discretion by narrowing,                 making disqualification the sole
                                       withdrawal of charges against a                         through these rules, the basis upon                    sanction available where charges of
                                       representative.                                         which charges of disbarment,                           disbarment, suspension or
                                         Finally, we are also making a                         suspension or disqualification may be                  disqualification based on misconduct
                                       technical change to §§ 404.1765(l) and                  sustained. Section 205 of the SSPA                     are sustained. Accordingly, we are not
                                       416.1565(l) to state that the Office of the             provides SSA with the discretion to                    including an explanation of this
                                       General Counsel will represent the                      disqualify representatives from practice               provision in the final rules.
                                       Deputy Commissioner for Disability and                  before SSA if the representative has                      Comment: The commenter
                                       Income Security Programs in all                         been suspended or disbarred by a court                 recommends that the regulations should
                                       representative sanction proceedings,                    or bar, or has been disqualified from                  be expanded to include provisions
                                       including those involving a request for                 participating in or appearing before a                 specifying that a representative’s
                                       reinstatement by a suspended or                         Federal program or agency. SSA has in                  reinstatement by a court, bar or agency
                                       disqualified individual. This                           these rules elected to narrow the                      will not preclude us from bringing
                                       amendment is necessary because the                      circumstances under which it will                      charges against a representative. While
                                       former Special Counsel Staff previously                 disqualify a representative to those                   recognizing that the rules as proposed
                                       represented the Deputy Commissioner.                    disbarments, suspensions, or                           would permit us to proceed with filing
                                       (See 56 FR 24129.)                                      disqualifications that were based on                   charges in these instances, the
                                                                                               misconduct. SSA will also exercise                     commenter believes that we should put
                                       Public Comments                                         discretion under these rules in deciding               representatives on notice of that fact by
                                         We published these regulatory                         when to bring charges.                                 making the regulations explicit in this
                                       provisions in the Federal Register as a                    As we explained in the preamble to                  respect. The commenter also thought
                                       notice of proposed rulemaking (NPRM)                    the NPRM and above, because our rules                  that the regulations should address the
                                       on April 13, 2005 (70 FR 19361). We                     on reinstatement after suspension                      situation in which reinstatement occurs
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                                       provided the public with a 60-day                       provide for automatic reinstatement at                 after charges are brought but before a
                                       comment period. Two individuals and                     the end of a period of suspension, we                  hearing is held.
                                       an organization submitted comments.                     believe it is necessary to make                           Response: Sections 404.1745(d) and
                                         Because some of the comments                          disqualification the only available                    416.1545(d) as proposed for revision
                                       submitted by the organization were                      sanction where charges of disbarment,                  authorized us to file charges against a


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                                                        Federal Register / Vol. 71, No. 11 / Wednesday, January 18, 2006 / Rules and Regulations                                        2875

                                       representative where we have evidence                   or agency, the individual is currently                 §§ 404.1755 and 416.1555 that clarify
                                       that the representative ‘‘has been’’                    qualified to participate in or appear                  our existing practices and rules with
                                       disbarred or suspended by a court or bar                before that program or agency); and                    respect to withdrawing charges. These
                                       by reason of misconduct. Sections                       whether SSA can reasonably expect the                  changes, which we are setting forth in
                                       404.1745(e) and 416.1545(e) as                          representative to comply with section                  a new fifth sentence included in
                                       proposed authorized us to file charges                  206 of the Act and our rules and                       §§ 404.1755 and 416.1555, specify that
                                       against a representative where we have                  regulations in the future.                             our action regarding withdrawal of
                                       evidence that a representative ‘‘has                       In adding these specific criteria for               charges is solely that of the Deputy
                                       been’’ disqualified from participating in               withdrawing charges of disbarment,                     Commissioner for Disability and Income
                                       or appearing before a Federal program                   suspension or disqualification based on                Security Programs, or his or her
                                       or agency by reason of misconduct. As                   possible reinstatement of the                          designee, and is not reviewable, or a
                                       proposed for revision, these sections                   representative, we have determined that                matter for consideration in decisions on
                                       included no language indicating that                    we should also clarify the second                      charges that are made against a
                                       our authority to bring charges in these                 sentence of §§ 404.1755 and 416.1555,                  representative under §§ 404.1770,
                                       circumstances is conditional on the                     which has heretofore stated: ‘‘We will                 404.1790, 416.1570 or 416.1590.
                                       absence or presence of any other                        [withdraw charges against a                               Comment: Observing that the
                                       circumstances. We believe that the                      representative] if the representative files            possibility that the same action could
                                       proposed language puts representatives                  an answer, or we obtain evidence, that                 lead to disbarment in one State, but not
                                       on notice that charges may be brought                   satisfies us that there is reasonable                  in another, the commenter recommends
                                       against them if they have been                          doubt about whether he or she should                   that the final rules should address this
                                       disbarred, suspended or disqualified,                   be suspended or disqualified from                      situation.
                                       even though reinstatement may have                      acting as a representative in dealings
                                                                                                                                                         Response: We believe that we do not
                                       occurred, and that no change in the                     with us.’’ The ‘‘reasonable doubt’’
                                                                                                                                                      need to address this issue in the final
                                       language is required in the final rules to              discussed in the second sentence of
                                                                                                                                                      rules because the rules as proposed
                                       clarify that point. The preamble to the                 §§ 404.1755 and 416.1555 is concerned
                                                                                                                                                      support the intended policy, which is
                                       proposed rules and the preamble to                      with the extent of our discretion to
                                                                                                                                                      that we disqualify a representative
                                       these final rules state that we are not                 decide not to pursue charges and is
                                                                                                                                                      whenever we bring and sustain charges
                                       precluded from filing charges where                     contingent on whether the
                                                                                                                                                      that the representative has been
                                       reinstatement has occurred.                             representative’s answer or the available
                                          We agree with this commenter that                    evidence ‘‘satisfies us’’ that the charges             disbarred or suspended for reasons of
                                       the regulations should include                          should be withdrawn. However, that                     misconduct by any court or bar before
                                       provisions addressing situations in                     language could be misunderstood to                     which he or she was previously
                                       which SSA files charges against a                       indicate that we will withdraw charges                 admitted to practice. In the Social
                                       representative based on disbarment,                     if the representative establishes a                    Security ruling discussed above, SSR
                                       suspension or disqualification and then                 reasonable doubt that he or she is no                  74–29, SSA cited the U.S. Supreme
                                       receives evidence, before a hearing is                  longer disbarred, suspended or                         Court’s opinion in Selling v. Radford,
                                       held, that the representative has been                  disqualified, and will not violate section             243 U.S. 46 (1917), for the proposition
                                       reinstated to practice before the court,                206 of the Act and our rules and                       that, ‘‘the effect of [a State court’s]
                                       bar, or Federal agency or program. We                   regulations in the future. To prevent                  disbarment, as long as the State court
                                       believe that the necessary guidance                     such a misunderstanding, we are                        action stands unreversed, has been
                                       should address situations in which we                   revising the final clause of the second                characterized as destroying the
                                       learn after filing charges of a possible                sentence of §§ 404.1755 and 416.1555 to                condition of fair private and
                                       reinstatement irrespective of whether                   state: ‘‘* * * if the representative files             professional character which an
                                       the reinstatement occurred before or                    an answer, or we obtain evidence, that                 individual must possess to continue as
                                       after our filing of charges.                            satisfies us that we should not suspend                a member of the Federal bar.’’ SSA
                                          We are providing such guidance in                    or disqualify the representative from                  policy reflects this holding by the
                                       these final rules by adding to                          acting as a representative in dealings                 Supreme Court in Program Operations
                                       §§ 404.1755 and 416.1555 new third and                  with us.’’                                             Manual System section GN 03970.011.
                                       fourth sentences that describe specific                    This clarification also precludes any               SSA has long accepted the decisions of
                                       criteria we apply when we determine                     possibility that the provisions of the                 different State courts and bar
                                       whether to withdraw charges of                          second sentence could be                               associations to disbar or suspend
                                       disbarment, suspension or                               misunderstood to imply that we sustain                 individuals for misconduct as
                                       disqualification because the                            charges brought against a representative               conclusive evidence that these
                                       representative may have been reinstated                 only if the charges have been proven                   individuals are no longer qualified to
                                       before or after our filing of charges. The              ‘‘beyond a reasonable doubt.’’ Any                     practice before SSA irrespective of the
                                       criteria we apply in these situations are               criminal charges that might be brought                 specific misconduct or governing law
                                       the same criteria that the Appeals                      against representatives must be proven                 that is the basis for the disbarment or
                                       Council applies to determine whether a                  beyond a reasonable doubt. However, in                 suspension. As previously stated, we
                                       disqualified representative should be                   the decisions made under §§ 404.1770                   believe that any individual who has
                                       reinstated. Those criteria are whether                  and 416.1570 in response to                            been proven to have violated applicable
                                       the representative has proven that he or                administrative charges brought against a               laws, regulations, or rules should be
                                       she has been reinstated to the court, bar,              representative under §§ 404.1745 and                   prohibited from practice before SSA
                                       or Federal program or agency that                       416.1545, hearing officers decide                      until that individual is found to be fit
                                       disbarred, suspended or disqualified the                findings of fact based on the                          to practice before the court that
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                                       representative, and that the                            preponderance of the evidence.                         disbarred or suspended the individual
                                       reinstatement is currently in effect (i.e.,                To further address situations in which              and has proven fitness to be reinstated
                                       the individual remains in good standing                 we consider withdrawing charges that                   to practice before SSA. While local
                                       with the court or bar involved or, if the               have been filed, we are also making                    court rules may vary, each attorney has
                                       adverse action was by a Federal program                 additional technical changes in                        the obligation to follow those rules.


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                                          Comment: The commenter expresses                     brought against a representative under                   Dated: October 19, 2005.
                                       support for the provision of                            §§ 404.1745(b) or 416.1745(b) for                      Jo Anne B. Barnhart,
                                       §§ 404.1770(a)(2) and 416.1570(a)(2)                    violation of the affirmative duty of                   Commissioner of Social Security.
                                       that an individual will not be                          representatives to provide claimants                   I For the reasons set out in the
                                       disqualified for disbarment, suspension                 competent representation. No change in                 preamble, we are amending subpart R of
                                       or disqualification if the action against               the rules as proposed is required to                   part 404 and subpart O of part 416 of
                                       the representative was taken solely for                 ensure this authority because the                      chapter III of title 20 of the Code of
                                       administrative reasons. The commenter                   proposed rules dealt with behavior such                Federal Regulations as set forth below:
                                       also asks that, if possible, additional                 as failure to complete continuing
                                       guidance should be provided in the                      education only as it can affect                        PART 404—FEDERAL OLD-AGE,
                                       final rules regarding this exception to                 disqualification of a representative                   SURVIVORS AND DISABILITY
                                       disqualification.                                       because of disbarment, suspension, or                  INSURANCE (1950– )
                                          Response: The proposed rules                         disqualification of the representative by
                                       provided guidance on the application of                 a court, bar or Federal program or                     Subpart R—[Amended]
                                       the exception regarding adverse actions                 agency.
                                       taken solely for administrative reasons                                                                        I 1. The authority citation for subpart R
                                       by providing two examples of instances                  Regulatory Procedures                                  of part 404 continues to read as follows:
                                       in which the exception would apply—                     Executive Order 12866                                    Authority: Secs. 205(a), 206, and 702(a)(5)
                                       i.e., when the adverse action was taken                                                                        of the Social Security Act (42 U.S.C. 405(a),
                                       for failure to pay dues or to complete                    The Office of Management and Budget                  406, and 902(a)(5)).
                                       continuing legal education                              (OMB) has reviewed these rules in
                                                                                               accordance with Executive Order 12866,                 I 2. Amend § 404.1745 by removing the
                                       requirements. The proposed rules                                                                               word ‘‘or’’ at the end of paragraph (b),
                                       provided further guidance by specifying                 as amended by Executive Order 13258.
                                                                                               We have also determined that these                     changing the period to a semicolon at
                                       that the exception does not apply if the                                                                       the end of paragraph (c), and adding
                                       administrative action was taken in lieu                 rules meet the plain language
                                                                                               requirement of Executive Order 12866,                  new paragraphs (d) and (e) to read as
                                       of disciplinary proceedings (e.g.,                                                                             follows:
                                       acceptance of a voluntary resignation                   as amended by Executive Order 13258.
                                       pending disciplinary action). Finally,                  Regulatory Flexibility Act                             § 404.1745 Violation of our requirements,
                                       the proposed rules provided additional                                                                         rules, or standards.
                                       guidance by stating that in deciding                      We certify that these final rules will
                                                                                                                                                      *      *    *     *    *
                                       whether a representative should be                      not have a significant economic impact                    (d) Has been, by reason of
                                       disqualified by reason of disbarment,                   on a substantial number of small entities              misconduct, disbarred or suspended
                                       suspension or disqualification, the                     because they affect only individuals.                  from any bar or court to which he or she
                                       hearing officer will not re-examine or                  Thus, a regulatory flexibility analysis, as            was previously admitted to practice (see
                                       revise the factual or legal conclusions                 provided in the Regulatory Flexibility                 § 404.1770(a)); or
                                       that led to the adverse action. In our                  Act, as amended, is not required.                         (e) Has been, by reason of misconduct,
                                       judgment, the guidance in the proposed                  Paperwork Reduction Act                                disqualified from participating in or
                                       rules provides specific guidance while                                                                         appearing before any Federal program or
                                       at the same time not interfering with the                 The final rules contain information
                                                                                                                                                      agency (see § 404.1770(a)).
                                       ability of the hearing officer to exercise              collection activities at 20 CFR
                                                                                                                                                      I 3. Amend § 404.1750 by revising
                                       appropriate discretion in assessing and                 404.1750(e)(2) and 416.1550(e)(2).
                                                                                               However, the activities are exempt                     paragraph (e)(2) to read as follows:
                                       making decisions based on the complete
                                       facts of the particular case. In addition,              under 44 U.S.C. 3518(c) from the                       § 404.1750 Notice of charges against a
                                       of course, the representative in each                   clearance requirements of 44 U.S.C.                    representative.
                                       case will have an opportunity to offer                  3507 as amended by section 2 of Public                 *     *     *     *   *
                                       evidence and argument to show that any                  Law 104–13 (May 22, 1995), the                           (e) * * *
                                       disbarment, suspension, or                              Paperwork Reduction Act of 1995.                         (2) File the answer with the Social
                                       disqualification is unrelated to                        (Catalog of Federal Domestic Assistance                Security Administration, at the address
                                       misconduct and administrative in                        Program Nos. 96.001, Social Security—                  specified on the notice, within the 30-
                                       nature.                                                 Disability Insurance; 96.002, Social                   day time period.
                                          We further note that where an adverse                Security—Retirement Insurance; 96.004,                 *     *     *     *   *
                                       action against a representative has been                Social Security—Survivors Insurance;
                                                                                                                                                      I 4. Revise § 404.1755 to read as
                                       taken solely for administrative reasons                 96.006, Supplemental Security Income.)
                                                                                                                                                      follows:
                                       and thus will not support                               List of Subjects
                                       disqualification of the representative                                                                         § 404.1755 Withdrawing charges against a
                                       under the provisions of §§ 404.1745 and                 20 CFR Part 404                                        representative.
                                       416.1545 concerning disbarment,                           Administrative practice and                             The Deputy Commissioner for
                                       suspension or disqualification by a                     procedure, Blind, Disability benefits,                 Disability and Income Security
                                       court, bar or Federal program or agency,                Old-Age, Survivors, and Disability                     Programs (or other official the
                                       we are not precluded from considering                   Insurance, Reporting and recordkeeping                 Commissioner may designate), or his or
                                       the behavior of the representative that                 requirements, Social Security.                         her designee, may withdraw charges
                                       caused the adverse action in connection                                                                        against a representative. We will do this
                                       with charges that we might bring against                20 CFR Part 416                                        if the representative files an answer, or
                                       the representative under other                            Administrative practice and                          we obtain evidence, that satisfies us that
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                                       provisions of §§ 404.1745 and 416.1545.                 procedure, Aged, Blind, Disability                     we should not suspend or disqualify the
                                       Thus, for example, we could consider                    benefits, Public assistance programs,                  representative from acting as a
                                       the fact that a representative failed to                Reporting and recordkeeping                            representative in dealings with us.
                                       take needed continuing education                        requirements, Supplemental Security                    When we consider withdrawing charges
                                       courses in connection with charges                      Income.                                                brought under § 404.1745(d) or (e) based


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                                                         Federal Register / Vol. 71, No. 11 / Wednesday, January 18, 2006 / Rules and Regulations                                              2877

                                       on the representative’s assertion that,                   not disqualify the individual from                     Further, the Appeals Council shall in no
                                       before or after our filing of charges, the                acting as a representative before SSA.                 event impose a suspension when
                                       representative has been reinstated to                     However, this exception to                             disqualification is the sole sanction
                                       practice by the court, bar, or Federal                    disqualification does not apply if the                 available in accordance with
                                       program or agency that suspended,                         administrative action was taken in lieu                § 404.1770(a)(3)(ii).
                                       disbarred, or disqualified the                            of disciplinary proceedings (e.g.,                     *     *     *    *      *
                                       representative, the Deputy                                acceptance of a voluntary resignation                  I 8. Amend § 404.1799 by revising
                                       Commissioner for Disability and Income                    pending disciplinary action). Although                 paragraph (d) to read as follows:
                                       Security Programs, or his or her                          the hearing officer will consider
                                       designee, will determine whether such                     whether the disbarment, suspension, or                 § 404.1799 Reinstatement after
                                       reinstatement occurred, whether it                        disqualification action is based on                    suspension or disqualification—period of
                                       remains in effect, and whether he or she                  misconduct when deciding whether an                    suspension not expired.
                                       is reasonably satisfied that the                          individual should be disqualified from                 *      *      *    *    *
                                       representative will in the future act in                  acting as a representative before us, the                 (d)(1) The Appeals Council shall not
                                       accordance with the provisions of                         hearing officer will not re-examine or                 grant the request unless it is reasonably
                                       section 206(a) of the Act and our rules                   revise the factual or legal conclusions                satisfied that the person will in the
                                       and regulations. If the representative                    that led to the disbarment, suspension                 future act according to the provisions of
                                       proves that reinstatement occurred and                    or disqualification. For purposes of                   section 206(a) of the Act, and to our
                                       remains in effect and the Deputy                          determining whether an individual has                  rules and regulations.
                                       Commissioner, or his or her designee, is                  been, by reason of misconduct,                            (2) If a person was disqualified
                                       so satisfied, the Deputy Commissioner,                    disqualified from participating in or                  because he or she had been disbarred or
                                       or his or her designee, will withdraw                     appearing before any Federal program or                suspended from a court or bar, the
                                       those charges. The action of the Deputy                   agency—                                                Appeals Council will grant a request for
                                       Commissioner, or his or her designee,                       (i) Disqualified refers to any action                reinstatement as a representative only if
                                       regarding withdrawal of charges is                        that prohibits an individual from                      the criterion in paragraph (d)(1) of this
                                       solely that of the Deputy Commissioner                    participating in or appearing before a                 section is met and the disqualified
                                       for Disability and Income Security                        Federal program or agency, regardless of               person shows that he or she has been
                                       Programs, or his or her designee, and is                  how long the prohibition lasts or the                  admitted (or readmitted) to and is in
                                       not reviewable, or subject to                             specific terminology used.                             good standing with the court or bar from
                                       consideration in decisions made under                       (ii) Federal program refers to any                   which he or she had been disbarred or
                                       §§ 404.1770 and 404.1790. If we                           program established by an Act of                       suspended.
                                       withdraw the charges, we shall notify                     Congress or administered by a Federal                     (3) If a person was disqualified
                                       the representative by mail at his or her                  agency.                                                because he or she had been disqualified
                                       last known address.                                         (iii) Federal agency refers to any                   from participating in or appearing
                                       I 5. Amend § 404.1765(l) by adding a                      authority of the executive branch of the               before a Federal program or agency, the
                                       second sentence, to read as follows:                      Government of the United States.                       Appeals Council will grant the request
                                                                                                   (3) * * *                                            for reinstatement only if the criterion in
                                       § 404.1765       Hearing on charges.                        (ii) Disqualify the representative from              paragraph (d)(1) of this section is met
                                       *      *    *      *    *                                 acting as a representative in dealings                 and the disqualified person shows that
                                          (l) Representation. * * * The Deputy                   with us until he or she may be                         he or she is now qualified to participate
                                       Commissioner for Disability and Income                    reinstated under § 404.1799.                           in or appear before that Federal program
                                       Security Programs (or other official the                  Disqualification is the sole sanction                  or agency.
                                       Commissioner may designate), or his or                    available if the charges have been                        (4) If the person was disqualified as a
                                       her designee, will be represented by one                  sustained because the representative has               result of collecting or receiving, and
                                       or more attorneys from the Office of the                  been disbarred or suspended from any                   retaining, a fee for representational
                                       General Counsel.                                          court or bar to which he or she was                    services in excess of the amount
                                       *      *    *      *    *                                 previously admitted to practice or                     authorized, the Appeals Council will
                                                                                                 disqualified from participating in or                  grant the request only if the criterion in
                                       I 6. Amend § 404.1770 by redesignating
                                                                                                 appearing before any Federal program or                paragraph (d)(1) of this section is met
                                       existing paragraphs (a)(2) and (a)(3) as
                                                                                                 agency, or because the representative                  and the disqualified person shows that
                                       (a)(3) and (a)(4), by adding a new
                                                                                                 has collected or received, and retains, a              full restitution has been made.
                                       paragraph (a)(2), and by revising
                                       redesignated paragraph (a)(3)(ii), to read                fee for representational services in                   *      *      *    *    *
                                       as follows:                                               excess of the amount authorized.
                                                                                                 *      *    *     *     *                              PART 416—SUPPLEMENTAL
                                       § 404.1770       Decision by hearing officer.                                                                    SECURITY INCOME FOR THE AGED,
                                                                                                 I 7. Amend § 404.1790 by revising
                                         (a) * * *                                                                                                      BLIND, AND DISABLED
                                                                                                 paragraph (b) to read as follows:
                                         (2) In deciding whether an individual
                                                                                                 § 404.1790    Appeals Council’s decision.              Subpart O—[Amended]
                                       has been, by reason of misconduct,
                                       disbarred or suspended by a court or                      *      *    *     *     *                              I 9. The authority citation for subpart O
                                       bar, or disqualified from participating in                   (b) The Appeals Council, in changing                of part 416 continues to read as follows:
                                       or appearing before any Federal program                   a hearing officer’s decision to suspend
                                       or agency, the hearing officer will                       a representative for a specified period,                 Authority: Secs. 702(a)(5) and 1631(d) of
                                                                                                                                                        the Social Security Act (42 U.S.C. 902(a)(5)
                                       consider the reasons for the disbarment,                  shall in no event reduce the period of                 and 1383(d)).
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                                       suspension, or disqualification action. If                suspension to less than 1 year. In
                                       the action was taken for solely                           modifying a hearing officer’s decision to              I 10. Amend § 416.1545 by removing
                                       administrative reasons (e.g., failure to                  disqualify a representative, the Appeals               the word ‘‘or’’ at the end of paragraph
                                       pay dues or to complete continuing                        Council shall in no event impose a                     (b), changing the period to a semicolon
                                       legal education requirements), that will                  period of suspension of less than 1 year.              at the end of paragraph (c), and adding


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                                       new paragraphs (d) and (e) to read as                   regarding withdrawal of charges is                     participating in or appearing before a
                                       follows:                                                solely that of the Deputy Commissioner                 Federal program or agency, regardless of
                                                                                               for Disability and Income Security                     how long the prohibition lasts or the
                                       § 416.1545 Violation of our requirements,               Programs, or his or her designee, and is               specific terminology used.
                                       rules, or standards.
                                                                                               not reviewable, or subject to                            (ii) Federal program refers to any
                                       *      *    *     *    *                                consideration in decisions made under                  program established by an Act of
                                          (d) Has been, by reason of                           §§ 416.1570 and 416.1590. If we                        Congress or administered by a Federal
                                       misconduct, disbarred or suspended                      withdraw the charges, we shall notify                  agency.
                                       from any bar or court to which he or she                the representative by mail at his or her                 (iii) Federal agency refers to any
                                       was previously admitted to practice (see                last known address.                                    authority of the executive branch of the
                                       § 416.1570(a)); or                                      I 13. Amend § 416.1565(l) by adding a                  Government of the United States.
                                          (e) Has been, by reason of misconduct,                                                                        (3) * * *
                                                                                               second sentence, to read as follows:
                                       disqualified from participating in or                                                                            (ii) Disqualify the representative from
                                       appearing before any Federal program or                 § 416.1565    Hearing on charges.                      acting as a representative in dealings
                                       agency (see § 416.1570(a)).                             *     *     *     *     *                              with us until he or she may be
                                       I 11. Amend § 416.1550 by revising                        (l) Representation. * * * The Deputy                 reinstated under § 416.1599.
                                       paragraph (e)(2) to read as follows:                    Commissioner for Disability and Income                 Disqualification is the sole sanction
                                                                                               Security Programs (or other official the               available if the charges have been
                                       § 416.1550 Notice of charges against a                  Commissioner may designate), or his or
                                       representative.                                                                                                sustained because the representative has
                                                                                               her designee, will be represented by one               been disbarred or suspended from any
                                       *     *     *     *   *                                 or more attorneys from the Office of the
                                         (e) * * *                                                                                                    court or bar to which he or she was
                                                                                               General Counsel.                                       previously admitted to practice or
                                         (2) File the answer with the Social
                                       Security Administration, at the address                 *     *     *     *     *                              disqualified from participating in or
                                       specified on the notice, within the 30-                 I 14. Amend § 416.1570 by                              appearing before any Federal program or
                                       day time period.                                        redesignating existing paragraphs (a)(2)               agency, or because the representative
                                                                                               and (a)(3) as (a)(3) and (a)(4), by adding             has collected or received, and retains, a
                                       *     *     *     *   *
                                                                                               a new paragraph (a)(2), and by revising                fee for representational services in
                                       I 12. Revise § 416.1555 to read as                      redesignated paragraph (a)(3)(ii), to read             excess of the amount authorized.
                                       follows:                                                as follows:                                            *      *    *     *     *
                                       § 416.1555 Withdrawing charges against a                § 416.1570    Decision by hearing officer.             I 15. Amend § 416.1590 by revising
                                       representative.                                                                                                paragraph (b) to read as follows:
                                                                                                 (a) * * *
                                          The Deputy Commissioner for                            (2) In deciding whether an individual
                                       Disability and Income Security                                                                                 § 416.1590   Appeals Council’s decision.
                                                                                               has been, by reason of misconduct,
                                       Programs (or other official the                         disbarred or suspended by a court or                   *      *    *     *     *
                                       Commissioner may designate), or his or                  bar, or disqualified from participating in                (b) The Appeals Council, in changing
                                       her designee, may withdraw charges                      or appearing before any Federal program                a hearing officer’s decision to suspend
                                       against a representative. We will do this               or agency, the hearing officer will                    a representative for a specified period,
                                       if the representative files an answer, or               consider the reasons for the disbarment,               shall in no event reduce the period of
                                       we obtain evidence, that satisfies us that              suspension, or disqualification action. If             suspension to less than 1 year. In
                                       we should not suspend or disqualify the                 the action was taken for solely                        modifying a hearing officer’s decision to
                                       representative from acting as a                         administrative reasons (e.g., failure to               disqualify a representative, the Appeals
                                       representative in dealings with us.                     pay dues or to complete continuing                     Council shall in no event impose a
                                       When we consider withdrawing charges                    legal education requirements), that will               period of suspension of less than 1 year.
                                       brought under § 416.1545(d) or (e) based                not disqualify the individual from                     Further, the Appeals Council shall in no
                                       on the representative’s assertion that,                 acting as a representative before SSA.                 event impose a suspension when
                                       before or after our filing of charges, the              However, this exception to                             disqualification is the sole sanction
                                       representative has been reinstated to                   disqualification does not apply if the                 available in accordance with
                                       practice by the court, bar, or Federal                  administrative action was taken in lieu                § 416.1570(a)(3)(ii).
                                       program or agency that suspended,                       of disciplinary proceedings (e.g.,                     *      *    *     *     *
                                       disbarred, or disqualified the                          acceptance of a voluntary resignation                  I 16. Amend § 416.1599 by revising
                                       representative, the Deputy                              pending disciplinary action). Although                 paragraph (d) to read as follows:
                                       Commissioner for Disability and Income                  the hearing officer will consider
                                       Security Programs, or his or her                        whether the disbarment, suspension, or                 § 416.1599 Reinstatement after
                                       designee, will determine whether such                   disqualification action is based on                    suspension or disqualification—period of
                                       reinstatement occurred, whether it                      misconduct when deciding whether an                    suspension not expired.
                                       remains in effect, and whether he or she                individual should be disqualified from                 *     *      *    *     *
                                       is reasonably satisfied that the                        acting as a representative before us, the                (d)(1) The Appeals Council shall not
                                       representative will in the future act in                hearing officer will not re-examine or                 grant the request unless it is reasonably
                                       accordance with the provisions of                       revise the factual or legal conclusions                satisfied that the person will in the
                                       section 206(a) of the Act and our rules                 that led to the disbarment, suspension                 future act according to the provisions of
                                       and regulations. If the representative                  or disqualification. For purposes of                   section 206(a) of the Act, and to our
                                       proves that reinstatement occurred and                  determining whether an individual has                  rules and regulations.
                                       remains in effect and the Deputy                        been, by reason of misconduct,                           (2) If a person was disqualified
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                                       Commissioner, or his or her designee, is                disqualified from participating in or                  because he or she had been disbarred or
                                       so satisfied, the Deputy Commissioner,                  appearing before any Federal program or                suspended from a court or bar, the
                                       or his or her designee, will withdraw                   agency—                                                Appeals Council will grant a request for
                                       those charges. The action of the Deputy                   (i) Disqualified refers to any action                reinstatement as a representative only if
                                       Commissioner, or his or her designee,                   that prohibits an individual from                      the criterion in paragraph (d)(1) of this


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                                                        Federal Register / Vol. 71, No. 11 / Wednesday, January 18, 2006 / Rules and Regulations                                         2879

                                       section is met and the disqualified                     DATES:  This final rule is effective                   with notice and comment under section
                                       person shows that he or she has been                    January 18, 2006.                                      6(b) of the Occupational Safety and
                                       admitted (or readmitted) to and is in                   ADDRESSES: In compliance with 28                       Health Act of 1970 (OSH Act) (29 U.S.C.
                                       good standing with the court or bar from                U.S.C. 2112(a), OSHA designates the                    655) and section 107 of the Contract
                                       which he or she had been disbarred or                   Associate Solicitor for Occupational                   Work Hours and Safety Standards Act
                                       suspended.                                              Safety and Health, Office of the                       (Construction Safety Act) (40 U.S.C.
                                          (3) If a person was disqualified                     Solicitor, Room S–4004, U.S.                           3704). In the course of that rulemaking,
                                       because he or she had been disqualified                 Department of Labor, 200 Constitution                  OSHA received evidence that workers
                                       from participating in or appearing                      Avenue, NW., Washington, DC 20210,                     were slipping and falling when working
                                       before a Federal program or agency, the                 telephone (202) 693–5445, as the                       on painted or coated structural steel
                                       Appeals Council will grant the request                  recipient of petitions for review of the               surfaces that were wet from rain or
                                       for reinstatement only if the criterion in              final standard.                                        condensation. The Agency decided that
                                       paragraph (d)(1) of this section is met                 FOR FURTHER INFORMATION CONTACT: For                   requiring such coatings to be slip-
                                       and the disqualified person shows that                  general information and press inquiries,               resistant would help to address the
                                       he or she is now qualified to participate               contact Kevin Ropp, OSHA Office of                     falling hazard. During the rulemaking,
                                       in or appear before that Federal program                Communications, Room N–3647, OSHA,                     OSHA received evidence both in
                                       or agency.                                              U.S. Department of Labor, 200                          support of and in opposition to the
                                          (4) If the person was disqualified as a              Constitution Avenue, NW., Washington,                  technical feasibility of such a
                                       result of collecting or receiving, and                  DC 20210; telephone (202) 693–1999.                    requirement.
                                       retaining, a fee for representational                   For technical inquiries, contact Tressi                   The relevant provisions of the 2001
                                       services in excess of the amount                        Cordaro, Office of Construction                        final rule are 29 CFR 1926.754(c)(3) and
                                       authorized, the Appeals Council will                    Standards and Guidance, Directorate of                 appendix B of subpart R of part 1926.
                                       grant the request only if the criterion in              Construction, Room N–3468, OSHA,                       Paragraph (c)(3) of § 1926.754
                                       paragraph (d)(1) of this section is met                 U.S. Department of Labor, 200                          establishes a slip-resistance requirement
                                       and the disqualified person shows that                  Constitution Avenue, NW., Washington,                  for the painted and coated top walking
                                       full restitution has been made.                         DC 20210; telephone (202) 693–2020.                    surface of any structural steel member
                                                                                                  For additional copies of this notice,               installed after July 18, 2006.
                                       [FR Doc. 06–433 Filed 1–17–06; 8:45 am]                                                                           Appendix B to subpart R is entitled
                                                                                               contact OSHA’s Office of Publications,
                                       BILLING CODE 4191–02–P
                                                                                               U.S. Department of Labor, Room N–                      ‘‘Acceptable Test Methods for Testing
                                                                                               3101, 200 Constitution Avenue, NW.,                    Slip-Resistance of Walking/Working
                                                                                               Washington, DC 20210; telephone (202)                  Surfaces (§ 1926.754(c)(3)). Non-
                                       DEPARTMENT OF LABOR                                     693–1888. Electronic copies of this                    Mandatory Guidelines for Complying
                                                                                               notice, as well as news releases and                   with § 1926.754(c)(3).’’ The Appendix
                                       Occupational Safety and Health                          other relevant documents, are available                lists two acceptable test methods:
                                       Administration                                          on OSHA’s Web site at http://                          Standard Test Method for Using a
                                                                                                                                                      Portable Inclineable Articulated Strut
                                                                                               www.osha.gov.
                                       29 CFR Part 1926                                                                                               Slip Tester (PIAST) (ASTM F1677–96);
                                                                                               SUPPLEMENTARY INFORMATION:                             and Standard Test Method for Using a
                                       RIN 1218–AC14                                           References: References to documents                    Variable Incidence Tribometer (VIT)
                                                                                               and materials are found throughout this                (ASTM F1679–96).
                                       [Docket No. S–775 A]                                    Federal Register document. Materials in                   The crux of the slip resistance
                                       Steel Erection; Slip Resistance of                      the docket of this rulemaking are                      requirement in § 1926.754(c)(3) is that
                                       Skeletal Structural Steel                               identified by their exhibit numbers, as                the coating used on the structural steel
                                                                                               follows: ‘‘Exhibit 2–1’’ means exhibit                 walking surface must have achieved a
                                       AGENCY:  Occupational Safety and Health                 number 2–1 and ‘‘Exhibit 2–1–1’’ means                 minimum average slip resistance of 0.50
                                       Administration (OSHA), Labor.                           number exhibit 2–1, attachment 1 in                    (when wet) when measured by an
                                       ACTION: Final rule.                                     Docket S–775A. A list of exhibits is                   English XL tribometer or by another test
                                                                                               available in the OSHA Docket Office,                   device’s equivalent value, using an
                                       SUMMARY: This document revokes a                        Room N–2625, U.S. Department of                        appropriate ASTM standard test
                                       provision within the Steel Erection                     Labor, 200 Constitution Avenue, NW.,                   method. In the preamble to the final
                                       Standard which addresses slip                           Washington, DC 20210; telephone (202)                  rule, OSHA noted that the two ASTM
                                       resistance of skeletal structural steel.                693–2350 (OSHA’s TTY number is (877)                   standard test methods listed in
                                       The Agency received comments that                       889–5627), and on OSHA’s Web site at                   Appendix B (ASTM F1677–96 and
                                       suggest there has been no significant                   http://www.osha.gov.                                   ASTM F1679–96) had not yet been
                                       progress regarding the suitability of the                  References to the Code of Federal                   validated through statements of
                                       test methods referenced in the provision                Regulations are identified as follows:                 precision and bias. (A precision and
                                       for testing slip resistance or the                      ‘‘29 CFR 1926.750’’ means chapter 29 of                bias statement is documentation that the
                                       availability of coatings that would meet                the Code of Federal Regulations, section               test method, in laboratory tests, has
                                       the slip resistant requirements of the                  750 of part 1926.                                      been shown to have an acceptable
                                       provision. Most significantly, there is a                                                                      degree of repeatability and
                                       high probability that the test methods                  I. Background                                          reproducibility). In addition,
                                       will not be validated through statements                   On January 18, 2001, OSHA                           representatives of the coatings industry
                                       of precision and bias by the effective                  published a new construction standard                  indicated that it would take time to
                                       date and that ASTM, an industry                         for steel erection work, 29 Code of                    develop new coatings to meet the
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                                       standards association, is likely to                     Federal Regulation Subpart R (Sections                 requirement. For these reasons, the
                                       withdraw them shortly thereafter. As a                  1926.750 through 1926.761 and                          Agency delayed the provision’s effective
                                       result employers will be unable to                      Appendices A through H) (‘‘2001 final                  date until July 18, 2006, because the
                                       comply with the provision. Therefore,                   rule’’) (66 FR 5196). It was developed                 evidence in the record indicated that it
                                       the Agency has decided to revoke it.                    through negotiated rulemaking, together                was reasonable to expect these


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