[Federal Register Volume 74, Number 111 (Thursday, June 11, 2009)]
[Proposed Rules]
[Pages 27727-27730]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-13621]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Part 416

[Docket No. SSA-2008-0051]
RIN 0960-AF97


Exclusion of Certain Military Pay From Deemed Income and 
Resources

AGENCY: Social Security Administration.

ACTION: Notice of proposed rulemaking.

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SUMMARY: We propose to revise our rules to clarify that, for 
Supplemental Security Income (SSI) purposes, we do not consider any 
combat-related military pay as income when we determine whether spouses 
and children of members of the uniformed services are eligible for SSI. 
The proposed rules also would clarify that we do not consider combat-
related military pay as income when we determine the spouse's or 
child's proper payment amount. These proposed rules also would provide 
that, when we determine whether spouses and children are eligible for 
SSI, we do not consider retroactive payments of certain military pay as 
resources for 9 months following receipt. These proposed rules would 
protect spouses and children of members of the uniformed services from 
a reduction in, or loss of, benefits because their spouse or parent 
serves in a combat zone.

DATES: To be sure that we consider your comments, we must receive them 
no later than August 10, 2009.

ADDRESSES: You may submit comments by any one of four methods--
Internet, facsimile, regular mail, or hand-delivery. Commenters should 
not submit the same comments multiple times or by more than one method. 
Regardless of which of the following methods you choose, please state 
that your comments refer to Docket No. SSA-2008-0051 to ensure that we 
can associate your comments with the correct regulation:
    1. Federal eRulemaking Portal at http://www.regulations.gov. (This 
is the most expedient method for submitting your comments, and we 
strongly urge you to use it.) In the ``Search Documents'' section of 
the Web page, type ``SSA-2008-0051,'' select ``Go,'' and then click 
``Send a Comment or Submission.'' The Federal eRulemaking Portal issues 
you a tracking number when you submit a comment.
    2. Telefax to (410) 966-2830.
    3. Letter to the Commissioner of Social Security, P.O. Box 17703, 
Baltimore, MD 21235-7703.
    4. Deliver your comments to the Office of Regulations, Social 
Security

[[Page 27728]]

Administration, 922 Altmeyer Building, 6401 Security Boulevard, 
Baltimore, Maryland 21235-6401, between 8 a.m. and 4:30 p.m. on regular 
business days.
    All comments are posted on the Federal eRulemaking portal, although 
they may not appear for several days after receipt of the comment. You 
may also inspect the comments on regular business days by making 
arrangements with the contact person shown in this preamble.
    Caution: All comments we receive from members of the public are 
available for public viewing on the Federal eRulemaking Portal at 
http://www.regulations.gov. Therefore, you should be careful to include 
in your comments only information that you wish to make publicly 
available on the Internet. We strongly urge you not to include any 
personal information, such as your Social Security number or medical 
information, in your comments.

FOR FURTHER INFORMATION CONTACT: Eric Skidmore, Social Insurance 
Specialist, Social Security Administration, Office of Income Security 
Programs, 252 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 
21235-6401, (410) 597-1833, for information about this notice. For 
information on eligibility or filing for benefits, call our national 
toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our 
Internet site, Social Security Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: 

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.

Background

    The SSI program provides a minimum income level for aged, blind, 
and disabled persons who do not have income or resources above levels 
specified in the Social Security Act (the Act). The Act generally 
requires that when we determine a person's eligibility for, and amount 
of, SSI benefits, we must consider the income and resources of an 
ineligible spouse living in the same household and, in the case of a 
child under the age of 18, an ineligible parent living in the same 
household (and the spouse of such a parent). Section 1614(f) of the 
Act, 42 U.S.C. 1382c(f). We use the term ``deeming'' to refer to the 
process of considering part of an ineligible spouse's or parent's 
income and resources to be the person's own income and resources.
    Although a member of the uniformed services on active duty is 
unlikely to apply or be eligible for SSI benefits, some members of the 
uniformed services have spouses or children who receive or may apply 
for SSI benefits. For purposes of deeming, the Act provides that a 
spouse or parent who is absent from the household solely because of a 
duty assignment as a member of the Armed Forces generally will be 
treated as if he or she were living in the household. Section 
1614(f)(4) of the Act, 42 U.S.C. 1382c(f)(4). Therefore, we generally 
deem income and resources of the member of the uniformed services to 
his spouse or child when determining the spouse's or child's 
eligibility for, and amount of, SSI benefits. Because we consider the 
member of the uniformed services as part of the household, we do not 
treat his military pay as unearned income from a source outside of the 
household.
    Although we generally deem income of a member of the uniformed 
services to his spouse or child, the Act excludes from income certain 
kinds of pay that members of the uniformed services may receive. 
Section 1612(b)(20) of the Act, 42 U.S.C. 1382a(b)(20). In particular, 
we exclude from income special pay received pursuant to 37 U.S.C. 310. 
Members of the uniformed services are eligible for special pay during 
months in which they are subject to hostile fire or certain other 
dangerous conditions specified in 37 U.S.C. 310. Our current 
regulations implementing section 1612(b)(20) of the Act exclude 
``hostile fire pay'' received under 37 U.S.C. 310 from income and from 
deeming to spouses and children. 20 CFR 416.1124(c)(19) and 
416.1161(a)(23). We are proposing to replace the term ``hostile fire 
pay'' in these sections of our rules with the term ``special pay'' to 
clarify that we exclude from income all special pay that a member of 
the uniformed services received pursuant to 37 U.S.C. 310.
    We are also proposing to add a new paragraph to our rules on 
deeming of income to spouses and children that excludes from deeming 
additional types of combat-related pay beyond special pay under 37 
U.S.C. 310. The Act allows us to waive the deeming of income and 
resources to a spouse or child when we determine that deeming would be 
inequitable. Section 1614(f) of the Act, 42 U.S.C. 1382c(f). Effective 
October 1, 2002, we issued instructions under this statutory authority 
to exclude from a spouse's or child's deemed income any additional pay 
that members of the uniformed services received because they were 
deployed to or served in a combat zone. We determined that it would be 
inequitable to deem that pay as income and reduce a family member's 
benefits or potentially render the family member ineligible for SSI. We 
are now proposing to incorporate this exclusion and the definition of 
the term ``combat zone'' in our SSI rules.
    We are also proposing to revise our rules on deeming of resources 
to spouses and children to exclude retroactive payments of certain 
kinds of military pay for 9 months following receipt. Congress has 
retroactively and permanently increased the amount of special pay under 
37 U.S.C. 310 and the family separation allowance under 37 U.S.C. 427. 
Pursuant to section 1614(f) of the Act, we issued instructions 
excluding retroactive payments of the increase in special pay received 
after September 2002 from a spouse's or child's deemed resources for a 
period of 9 months following the month of receipt. Our instructions 
similarly excluded retroactive payments of the family separation 
allowance that a member of the uniformed services received as a result 
of deployment to or service in a combat zone. We determined that it 
would be inequitable to apply the usual resource deeming rules to these 
retroactive payments in recognition of the hardships experienced and 
sacrifices made by members of the uniformed services and their 
families. We are now proposing to revise our SSI rules to incorporate 
these exclusions.
    Finally, we are proposing to revise the punctuation at the 
conclusion of Sec.  416.1161(a)(25), (a)(26), and (a)(27). We are also 
proposing to clarify some of the language in Sec.  416.1202(a) and 
(b)(1) and to reorganize portions of Sec.  416.1202(b)(1) to make that 
section easier to understand. We are proposing these changes solely to 
improve the clarity of these rules, and these changes would have no 
substantive effect on our policies or procedures.

Explanation of Proposed Changes

    We propose to amend the regulations in 20 CFR, part 416, subparts K 
and L, to reflect the changes discussed above. In summary, we propose 
to:
    1. Revise Sec.  416.1124(c)(19) and Sec.  416.1161(a)(23) to 
replace the term ``hostile fire pay'' with the term ``special pay.'' We 
propose this technical clarification to conform the regulatory language 
to the statutory language in section 1612(b)(20) of the Act.
    2. Amend Sec.  416.1160(d) to add a definition of the term ``combat 
zone.''
    3. Amend Sec.  416.1161 by adding new paragraph (a)(28) to exclude 
from income deemed from an ineligible spouse or parent any additional 
increment in pay, other than any

[[Page 27729]]

increase in basic pay (e.g., annual pay raises, promotions), if:
     The spouse or parent received the additional pay as a 
result of deployment to or service in a combat zone; and
     The spouse or parent was not receiving the additional pay 
immediately prior to deployment to or service in a combat zone.
    4. Revise the punctuation at the conclusion of paragraphs (a)(25), 
(a)(26), and (a)(27) of Sec.  416.1161.
    5. Revise paragraphs (a) and (b)(1) of Sec.  416.1202 to exclude 
from resources deemed from an ineligible spouse or parent (or spouse of 
a parent), for 9 months following the month of receipt, the unspent 
portion of any retroactive payment of:
     Special pay the ineligible spouse or parent received from 
one of the uniformed services pursuant to 37 U.S.C. 310; and
     Family separation allowance the ineligible spouse or 
parent received from one of the uniformed services pursuant to 37 
U.S.C. 427 as a result of deployment to or service in a combat zone.
    6. Clarify some language in paragraphs (a) and (b)(1) of Sec.  
416.1202, and reorganize portions of paragraph (b)(1).

Clarity of These Rules

    Executive Order (E.O.) 12866, as amended, requires each agency to 
write all rules in plain language. In addition to your substantive 
comments on these proposed 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 12866

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

Regulatory Flexibility Act

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

Paperwork Reduction Act

    These proposed rules do not pose any public reporting requirements 
and are, therefore, not subject to the requirements of the Paperwork 
Reduction Act.

(Catalog of Federal Domestic Assistance Program No. 96.006, 
Supplemental Security Income)

List of Subjects in 20 CFR Part 416

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

    Dated: June 3, 2009.
Michael J. Astrue,
Commissioner of Social Security.

    For the reasons set out in the preamble, we propose to amend 
subparts K and L of part 416 of chapter III of title 20 Code of Federal 
Regulations as set forth below:

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

Subpart K--[Amended]

    1. The authority citation for subpart K of part 416 continues to 
read as follows:

    Authority: Secs. 702(a)(5), 1602, 1611, 1612, 1613, 1614(f), 
1621, 1631, and 1633 of the Social Security Act (42 U.S.C. 
902(a)(5), 1381a, 1382, 1382a, 1382b, 1382c(f), 1382j, 1383, and 
1383b); sec. 211, Public Law 93-66, 87 Stat. 154 (42 U.S.C. 1382 
note).

    2. Amend Sec.  416.1124 by revising paragraph (c)(19) to read as 
follows:


Sec.  416.1124  Unearned income we do not count.

* * * * *
    (c) * * *
    (19) Special pay received from one of the uniformed services 
pursuant to 37 U.S.C. 310;
* * * * *
    3. Amend Sec.  416.1160 by adding the definition of ``Combat zone'' 
in paragraph (d) to read as follows:


Sec.  416.1160  What is deeming of income?

* * * * *
    (d) * * *
    Combat zone means
    (i) Any area the President of the United States designates by 
Executive Order under 26 U.S.C. 112 as an area in which Armed Forces of 
the United States are or have engaged in combat;
    (ii) A qualified hazardous duty area (QHDA) Congress designates be 
treated in the same manner as an area designated by the President under 
26 U.S.C. 112, provided the member of the uniformed services serving in 
this area is entitled to special pay under 37 U.S.C. 310; or
    (iii) An area where the Secretary of Defense or his designated 
representative has certified that Armed Forces members provide direct 
support for military operations in an area designated by the President 
under 26 U.S.C. 112 or a QHDA, provided the member of the uniformed 
services serving in the area certified by the Secretary of Defense or 
his designated representative is entitled to special pay under 37 
U.S.C. 310.
* * * * *
    4. Amend Sec.  416.1161 as follows:
    a. Amend paragraph (a)(23) by removing the words ``Hostile fire 
pay'' and adding the words ``Special pay'' in their place;
    b. Remove the word ``and'' at the end of paragraph (a)(25);
    c. Remove the period at the end of paragraph (a)(26) and add a 
semicolon in its place;
    d. Remove the period at the end of paragraph (a)(27) and add ``; 
and'' in its place; and
    e. Add paragraph (a)(28) to read as follows:


Sec.  416.1161  Income of an ineligible spouse, ineligible parent, and 
essential person for deeming purposes.

* * * * *
    (a) * * *
    (28) Any additional increment in pay, other than any increase in 
basic pay, received while serving as a member of the uniformed 
services, if--
    (i) Your ineligible spouse or parent received the pay as a result 
of deployment to or service in a combat zone; and
    (ii) Your ineligible spouse or parent was not receiving the 
additional pay immediately prior to deployment to or service in a 
combat zone.
* * * * *

SUBPART L--[Amended]

    5. The authority citation for subpart L of part 416 continues to 
read as follows:

    Authority: Secs. 702(a)(5), 1602, 1611, 1612, 1613, 1614(f), 
1621, 1631, and 1633 of the Social Security Act (42 U.S.C. 
902(a)(5),

[[Page 27730]]

1381a, 1382, 1382a, 1382b, 1382c(f), 1382j, 1383, and 1383b); sec. 
211, Public Law 93-66, 87 Stat. 154 (42 U.S.C. 1382 note).

    6. In Sec.  416.1202:
    a. Revise the second sentence and remove the third sentence of 
paragraph (a);
    b. Add new paragraphs (a)(1), (a)(2), and (a)(3); and
    c. Revise paragraph (b)(1).
    The additions and revisions read as follows:


Sec.  416.1202  Deeming of resources.

    (a) * * * In addition to the exclusions listed in Sec.  416.1210, 
we also exclude the following items:
    (1) Pension funds that the ineligible spouse may have. Pension 
funds are defined as funds held in individual retirement accounts 
(IRA), as described by the Internal Revenue Code, or in work-related 
pension plans (including such plans for self-employed persons, 
sometimes referred to as Keogh plans);
    (2) For 9 months beginning with the month following the month of 
receipt, the unspent portion of any retroactive payment of special pay 
an ineligible spouse received from one of the uniformed services 
pursuant to 37 U.S.C. 310; and
    (3) For 9 months beginning with the month following the month of 
receipt, the unspent portion of any retroactive payment of family 
separation allowance an ineligible spouse received from one of the 
uniformed services pursuant to 37 U.S.C. 427 as a result of deployment 
to or service in a combat zone (as defined in Sec.  416.1160(d)).
    (b) * * *
    (1) General. In the case of a child (as defined in Sec.  416.1856) 
who is under age 18, we will deem to that child any resources, not 
otherwise excluded under this subpart, of his ineligible parent who is 
living in the same household with him (as described in Sec.  416.1851). 
We also will deem to the child the resources of his ineligible 
stepparent. As used in this section, the term ``parent'' means the 
natural or adoptive parent of a child, and the term ``stepparent'' 
means the spouse (as defined in Sec.  416.1806) of such natural or 
adoptive parent who is living in the same household with the child and 
parent. We will deem to a child the resources of his parent and 
stepparent whether or not those resources are available to him. We will 
deem to a child the resources of his parent and stepparent only to the 
extent that those resources exceed the resource limits described in 
Sec.  416.1205. (If the child is living with only one parent, we apply 
the resource limit for an individual. If the child is living with both 
parents, or the child is living with one parent and a stepparent, we 
apply the resource limit for an individual and spouse.) We will not 
deem to a child the resources of his parent or stepparent if the child 
is excepted from deeming under paragraph (b)(2) of this section. In 
addition to the exclusions listed in Sec.  416.1210, we also exclude 
the following items:
    (i) Pension funds of an ineligible parent (or stepparent). Pension 
funds are defined as funds held in IRAs, as described by the Internal 
Revenue Code, or in work-related pension plans (including such plans 
for self-employed persons, sometimes referred to as Keogh plans);
    (ii) For 9 months beginning with the month following the month of 
receipt, the unspent portion of any retroactive payment of special pay 
an ineligible parent (or stepparent) received from one of the uniformed 
services pursuant to 37 U.S.C. 310; and
    (iii) For 9 months beginning with the month following the month of 
receipt, the unspent portion of any retroactive payment of family 
separation allowance an ineligible parent (or stepparent) received from 
one of the uniformed services pursuant to 37 U.S.C. 427 as a result of 
deployment to or service in a combat zone (as defined in Sec.  
416.1160(d)).
* * * * *

[FR Doc. E9-13621 Filed 6-10-09; 8:45 am]
BILLING CODE 4191-02-P