[Federal Register Volume 70, Number 106 (Friday, June 3, 2005)]
[Proposed Rules]
[Pages 32550-32552]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11074]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Regulation Nos. 4 and 16]
RIN 0960-AG07


Work Activity of Persons Working as Members of Advisory 
Committees Established Under the Federal Advisory Committee Act (FACA)

AGENCY: Social Security Administration.

ACTION: Notice of proposed rulemaking.

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SUMMARY: We are proposing to revise our disability regulations under 
titles II and XVI of the Social Security Act to incorporate a new, 
special rule that would affect individuals who are receiving payments 
or providing services as members or consultants of a committee, board, 
commission, council or similar group established under the Federal 
Advisory Committee Act (FACA).
    Under this special rule, we would not count any earnings an 
individual is receiving from serving as a member or consultant of a 
FACA advisory committee when we determine if the individual is engaging 
in substantial gainful activity under titles II and XVI of the Social 
Security Act (the Act). In addition, we would not evaluate any of the 
services the individual is providing as a member or consultant of the 
FACA advisory committee when determining if the individual has engaged 
in

[[Page 32551]]

substantial gainful activity under titles II and XVI of the Act.
    Based on our experience with FACA advisory committees and the 
frequency and level of activity required by these committees, we 
believe that performance of activity on these committees does not 
demonstrate the ability to perform substantial gainful activity. We 
believe this to be consistent with Congress's view as it has recognized 
in creating the Ticket to Work advisory committee, for example, that 
current disability beneficiaries should be considered for membership. 
This also will encourage individuals with disabilities to serve on FACA 
advisory committees, thereby providing the benefit of their unique 
perspective on policies and programs to the Federal Government.

DATES: To be sure that your comments are considered, we must receive 
them no later than August 2, 2005.

ADDRESSES: You may give us your comments by: Using our Internet site 
facility (i.e., Social Security Online) at http://policy.ssa.gov/pnpublic.nsf/LawsRegs or the Federal eRulemaking Portal at http://www.regulations.gov; e-mail to [email protected]; telefax to (410) 
966-2830, or letter to the Commissioner of Social Security, P.O. Box 
17703, Baltimore, MD 21235-7703. You may also deliver them to the 
Office of Regulations, Social Security Administration, 100 Altmeyer 
Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401, 
between 8 a.m. and 4:30 p.m. on regular business days. Comments are 
posted on our Internet site, or you may inspect them on regular 
business days by making arrangements with the contact person shown in 
this preamble.
    Electronic Version: The electronic file of this document is 
available on the date of publication in the Federal Register at http://www.gpoaccess.gov/fr/index.html. It is also available on the Internet 
site for SSA (i.e., Social Security Online): http://policy.ssa.gov/pnpublic.nsf/LawsRegs.

FOR FURTHER INFORMATION CONTACT: Mary Hoover, Policy Analyst, Office of 
Program Development and Research, Social Security Administration, 6401 
Security Boulevard, Baltimore, MD 21235-6401. Call (410) 965-5651 or 
TTY 1-800-325-0778 for information about these proposed rules. For 
information on eligibility or filing for benefits, call our national 
toll-free number 1-(800) 772-1213 or TTY 1-(800) 325-0778. You may also 
contact Social Security Online at http://www.socialsecurity.gov/.

SUPPLEMENTARY INFORMATION: 

What Is the Purpose of This Notice of Proposed Rulemaking (NPRM)?

    In this NPRM, we propose to establish a new, special rule that 
would apply to individuals working as members or consultants of a 
committee, board, commission, council or similar group established 
under the FACA, 5 U.S.C. App. 2. Under this special rule, earnings 
received or services provided by the individual as a result of serving 
on a Federal Advisory Committee, would not be evaluated when deciding 
if the individual has engaged in substantial gainful activity under 
titles II and XVI of the Act.

What Is the FACA?

    The FACA and its implementing regulations allow the Federal 
Government to establish or utilize advisory committees consisting of 
non-Federal employees when they are determined to be essential for 
furnishing expert advice, ideas, and diverse opinions to the Federal 
Government. Advisory committees are established solely when it is 
beneficial to the Federal Government. Such committees serve an advisory 
role only. Members and consultants of advisory committees established 
under FACA receive compensation in a manner which gives appropriate 
recognition to the responsibilities and qualifications required and 
other relevant factors.

What Rules Are We Revising and Why?

    The purpose of FACA advisory committees is to provide expert 
advice, ideas, and diverse opinions to the Federal Government. The 
individuals who serve on these advisory committees do so for the 
benefit of the Federal Government. Consistent with Congress's view as 
reflected by mandating consideration of currently disabled social 
security beneficiaries for membership on the Ticket to Work advisory 
committee, we do not believe that performance of activity on these 
committees demonstrates an ability to perform substantial gainful 
activity. Furthermore, this would encourage individuals with 
disabilities to serve on FACA advisory committees, thereby providing 
the benefit of their unique perspective on policies and programs to the 
Federal Government. We propose not to evaluate earnings received or 
services provided by the individual, as a result of serving on a 
Federal Advisory Committee, when deciding if the individual has engaged 
in substantial gainful activity. This special rule will eliminate the 
fear individuals may have concerning the loss or denial of benefits 
(including health care), based on earnings received and services 
provided as a result of serving on a FACA advisory committee.

Explanation of Changes

    We are proposing to revise Sec. Sec.  404.1574 and 416.974 to 
specify that if you are serving as a member or consultant of an 
advisory committee, board, commission, council or similar group 
established under FACA, we would not evaluate the earnings you receive 
or the services provided as a result from serving on such committees 
when we determine whether you are engaging in substantial gainful 
activity under title II and title XVI of the Act.

Clarity of These Proposed Rules

    Executive Order (E.O.) 12866, as amended by E.O. 13258, requires 
each agency to write all rules in plain language. In addition to your 
substantive comments on these final rules, we invite your comments on 
how to make them easier to understand.
    For example:
     Have we organized the material to suit your needs?
     Are the requirements in the rules clearly stated?
     Do the rules contain technical language or jargon that 
isn't clear?
     Would a different format (grouping and order of sections, 
use of headings, paragraphing) make the rules easier to understand?
     Would more (but shorter) sections be better?
     Could we improve clarity by adding tables, lists, or 
diagrams?
     What else could we do to make the rules easier to 
understand?

Regulatory Procedures

Executive Order (E.O.) 12866

    We have consulted with the Office of Management and Budget (OMB) 
and determined that these proposed rules meet the criteria for a 
significant regulatory action under Executive Order 12866, as amended 
by Executive Order 13256. Thus, they were reviewed by OMB.

Regulatory Flexibility Act

    We certify that these proposed regulations would not have a 
significant economic impact on a substantial number of small entities 
because they affect only individuals. Thus, a regulatory flexibility 
analysis as provided in the Regulatory Flexibility Act, as amended, is 
not required.

Paperwork Reduction Act

    These proposed regulations impose no reporting or recordkeeping 
requirements requiring OMB clearance.


[[Page 32552]]


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

List of Subjects

20 CFR Part 404

    Administrative practice and procedure, Blind, Disability benefits, 
Old-Age, Survivors and Disability Insurance, Reporting and 
recordkeeping requirements, Social Security.

20 CFR Part 416

    Administrative practice and procedure, Aged, Blind, Disability 
benefits, Public assistance programs, Reporting and recordkeeping 
requirements, Supplemental Security Income (SSI).

    Dated: March 16, 2005.
Jo Anne B. Barnhart,
Commissioner of Social Security.

    For the reasons set out in the preamble, we are amending subpart P 
of part 404 and subparts I and K of part 416 of chapter III of title 20 
of the Code of Federal Regulations as set forth below:

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

Subpart P--[Amended]

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

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

    2. Section 404.1574 is amended by redesignating paragraph (d) as 
paragraph (d)(1), and adding new paragraph (d)(2) to read as 
follows:


Sec.  404.1574  Evaluation guides if you are an employee.

* * * * *
    (d) * * *
    (2) Work activity as a member or consultant of an advisory 
committee established under the Federal Advisory Committee Act (FACA), 
5 U.S.C. App. 2. If you are serving as a member or consultant of an 
advisory committee, board, commission, council, or similar group 
established under FACA, we will not count any payments you receive from 
serving on such committees as earnings when we determine whether you 
are engaging in substantial gainful activity. These payments may 
include compensation, travel expenses, and special assistance. We also 
will exclude the services you perform as a member or consultant of an 
advisory committee established under FACA in applying any of the 
substantial gainful activity tests discussed in paragraph (b)(6) of 
this section. This exclusion from the substantial gainful activity 
provisions will apply only if you are a member or consultant of an 
advisory committee specifically authorized by statute, or by the 
President, or determined as a matter of formal record by the head of a 
government agency. This exclusion from the substantial gainful activity 
provisions will not apply if your service as a member or consultant of 
an advisory committee is part of your duties or is required as an 
employee of any governmental or non-governmental organization, agency, 
or business.

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

Subpart I--[Amended]

    3. The authority citation for subpart I continues to read as 
follows;

    Authority: Secs. 702(a)(5) and 1601-1635 of the Social Security 
Act (42 U.S.C. 902(a)(5) and 1381-133d); sec. 212, Pub. L. 93-66, 87 
Stat. 155 (42 U.S.C. 1382 note); sec. 502(a), Pub. L. 94-241, 90 
Stat. 268 (48 U.S.C. 1681 note).

    4. Section 416.974 is amended by redesignating paragraph (d) as 
paragraph (d)(1), and adding new paragraph (d)(2) to read as follows:


Sec.  416.974  Evaluation guides if you are an employee.

* * * * *
    (d) * * *
    (2) Work activity as a member or consultant of an advisory 
committee established under the Federal Advisory Committee Act (FACA), 
5 U.S.C. App. 2. If you are serving as a member or consultant of an 
advisory committee, board, commission, council, or similar group 
established under FACA, we will not count any payments you receive from 
serving on such committees as earnings when we determine whether you 
are engaging in substantial gainful activity. These payments may 
include compensation, travel expenses, and special assistance. We also 
will exclude the services you perform as a member or consultant of an 
advisory committee established under FACA in applying any of the 
substantial gainful activity tests discussed in paragraph (b)(6) of 
this section. This exclusion from the substantial gainful activity 
provision will apply only if you are a member or consultant of an 
advisory committee specifically authorized by statute, or by the 
President, or determined as a matter of formal record by the head of a 
government agency. This exclusion from the substantial gainful activity 
provision will not apply if your service as a member or consultant of 
an advisory committee is part of your duties or is required as an 
employee of any governmental or non-governmental organization, agency, 
or business.

[FR Doc. 05-11074 Filed 6-2-05; 8:45 am]
BILLING CODE 4191-02-P