[Federal Register Volume 71, Number 13 (Friday, January 20, 2006)]
[Rules and Regulations]
[Pages 3217-3219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-510]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

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: Final Rule.

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SUMMARY: We are revising our disability regulations under titles II and 
XVI of the Social Security Act to establish a new, special rule that 
affects 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 will 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 will 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 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: This final rule is effective on February 21, 2006.

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.

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 final 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 Final Rule?

    In this final rule, we are establishing a new, special rule that 
applies 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, will not be evaluated when deciding if 
the individual has engaged in substantial gainful activity under titles 
II and XVI of the Act.

[[Page 3218]]

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. This special rule 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. We will not 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 revising 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 
will 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.

Public Comments

    On June 3, 2005, we published proposed rules in the Federal 
Register at 70 FR 32550 and provided a 60-day period for interested 
parties to comment. We received comments from 6 advocacy organizations 
and 3 individuals. Because some of the comments received were quite 
detailed, we have condensed, summarized or paraphrased them in the 
discussion below. We have tried to present all views adequately and 
carefully address all of the issues raised by the commenters that are 
within the scope of the final rules.

    Comment: One individual disagreed with our proposed implementation 
of this special rule and wanted all income to be treated equally.
    Response: One of our highest priorities is to help individuals with 
disabilities achieve independence by helping them to take advantage of 
employment opportunities. To this end, we have various employment 
supports and work incentives in place to disregard some or all of an 
individual's earnings while he or she attempts to return to work.
    This disregard will encourage individuals with disabilities to 
participate on FACA committees. Furthermore, based on our experience, 
we do not believe that work performed by individuals with disabilities 
serving on a FACA committee demonstrates an ability to perform 
substantial gainful activity. Therefore, we are not adopting this 
commenter's recommendation.

    Comment: Three commenters supported the rule without 
qualifications. Five commenters supported the rule but wanted it to 
extend to similar types of advisory panels at the state and local 
level.
    Response: There are numerous committees, boards, and similar groups 
which have been established to advise the Federal Government; 
therefore, Congress enacted the Federal Advisory Committee Act (FACA) 
to regulate these committees and groups. The FACA directs the 
establishment of these committees, their purpose, functions, 
organization, record-keeping requirements, and conditions for 
termination. These directives will assure that committees established 
under the FACA will operate in a uniform manner.
    Other advisory committees are not subject to these exacting 
regulations. We cannot be assured that their functions and organization 
meet the same criteria of a FACA committee, on which we base the 
establishment of this special rule. Therefore, we are not adopting the 
commenters' recommendation to extend this rule to advisory panels at 
the state or local level. We will evaluate on a case-by-case basis 
whether services performed or earnings received for activity on other 
advisory committees constitute SGA using existing rules.

Regulatory Procedures

Executive Order 12866

    We have consulted with the Office of Management and Budget (OMB) 
and determined that this final rule meets the criteria for a 
significant regulatory action under Executive Order 12866, as amended 
by Executive Order 13256. Thus, it was reviewed by OMB. We have also 
determined that this rule meets the plain language requirement of 
Executive Order 12866, as amended by Executive Order 13258.

Regulatory Flexibility Act

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

Paperwork Reduction Act

    This final rule imposes no reporting or recordkeeping requirements 
requiring OMB clearance.

(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: October 18, 2005.
Jo Anne B. Barnhart,
Commissioner of Social Security.

0
For the reasons set out in the preamble, we are amending subpart P of 
part 404 and subpart I of part 416 of chapter III of title 20 of the 
Code of Federal Regulations as set forth below:

[[Page 3219]]

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

Subpart P--[Amended]

0
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.

0
2. Section 404.1574 is amended by adding a new paragraph (e) to read as 
follows:


Sec.  404.1574  Evaluation guides if you are an employee.

* * * * *
    (e) 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 
federal 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]

0
3. The authority citation for subpart I continues to read as follows;

    Authority: Secs. 702(a)(5), 1611, 1614, 1619, 1631(a), (c), and 
(d)(1), and 1633 of the Social Security Act (42 U.S.C. 902(a)(5), 
1382, 1382c, 1382h, 1383(a), (c), and (d)(1), and 1383b); secs. 4(c) 
and 5, 6(c)-(e), 14(a), and 15, Pub. L. 98-460, 98 Stat. 1794, 1801, 
1802, and 1808 (42 U.S.C. 421 note, 423 note, 1382h note).

0
4. Section 416.974 is amended by adding a new paragraph (e) to read as 
follows:


Sec.  416.974  Evaluation guides if you are an employee.

* * * * *
    (e) 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 
federal 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.

[FR Doc. 06-510 Filed 1-19-06; 8:45 am]
BILLING CODE 4191-02-P