06-510. 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.

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 [phone] 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-[phone] or TTY 1-[phone]. 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.

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 §§ 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.

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:

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 adding a new paragraph (e) to read as follows:

§ 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]

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).

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

§ 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.