05-11074. 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.

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 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 [e-mail]; telefax to [phone], 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 [phone] 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-[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 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 §§ 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.

(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:

§ 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:

§ 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.