Federal Register / Vol. 72, No. 82 / Monday, April 30, 2007 / Rules and Regulations 21099 

19 5 U.S.C. 601–612. 

20Small entities that qualified for a waiver from 

the requirements of Order Nos. 888 and 889 may 

apply for a waiver of the requirement to comply 

with the standards incorporated by reference in the 

regulations we are adopting in this Final Rule. 

21 5 U.S.C. 605(b). 22See 5 U.S.C. 804(2). 

VII. Regulatory Flexibility Act 

Certification 

36. The Regulatory Flexibility Act of 

1980 (RFA) 19 generally requires a 

description and analysis of any final 

rule that will have significant economic 

impact on a substantial number of small 

entities. The rule adopted here imposes 

requirements only on public utilities, 

which are not small businesses, and 

these requirements are, in fact, designed 

to benefit all customers, including small 

businesses. 

37. The Commission has followed the 

provisions of both the RFA and the 

Paperwork Reduction Act on potential 

impact on small businesses and other 

small entities. Specifically, the RFA 

directs agencies to consider four 

regulatory alternatives to be considered 

in a rulemaking to lessen the impact on 

small entities: tiering or establishment 

of different compliance or reporting 

requirements for small entities, 

classification, consolidation, 

clarification or simplification of 

compliance and reporting requirements, 

performance rather than design 

standards, and exemptions. As the 

Commission originally stated in Order 

No. 889, the OASIS regulations now 

known as ‘‘Standards for Business 

Practices and Communication Protocols 

for Public Utilities’’ apply only to public 

utilities that own, operate, or control 

transmission facilities subject to the 

Commission’s jurisdiction, and should a 

small entity be subject to the 

Commission’s jurisdiction, it may file 

for waiver of these regulations.20 The 

Commission is not modifying its prior 

determinations on this issue in this 

Final Rule. 

38. The procedures the Commission is 

following in this Final Rule are in 

keeping with exemption provisions of 

the RFA. Accordingly, pursuant to 

section 605(b) of the RFA,21 the 

Commission hereby certifies that the 

regulations proposed herein will not 

have a significant adverse impact on a 

substantial number of small entities. 

VIII. Document Availability 

39. In addition to publishing the full 

text of this document in the Federal 

Register, the Commission provides all 

interested persons an opportunity to 

view and/or print the contents of this 

document via the Internet through the 

Commission’s Home Page (http:// 

www.ferc.gov) and in the Commission’s 

Public Reference Room during normal 

business hours (8:30 a.m. to 5 p.m. 

Eastern time) at 888 First Street, NE., 

Room 2A, Washington, DC 20426. 

40. From the Commission’s Home 

Page on the Internet, this information is 

available in the eLibrary. The full text 

of this document is available in the 

eLibrary both in PDF and Microsoft 

Word format for viewing, printing, and/ 

or downloading. To access this 

document in eLibrary, type ‘‘RM05–5’’

in the docket number field. 

41. User assistance is available for 

eLibrary and the Commission’s Web site 

during the Commission’s normal 

business hours. For assistance contact 

the Commission’s Online Support 

services at 

FERCOnlineSupport@ferc.gov or tollfree at (866) 208–3676, or for TTY, 

contact (202) 502–8659. 

IX. Effective Date and Congressional 

Notification 

42. This Final Rule will become 

effective May 30, 2007. The Commission 

has determined with the concurrence of 

the Administrator of the Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, that 

this rule is not a major rule within the 

meaning of section 251 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996.22

List of Subjects 

18 CFR Part 38 

Conflict of interests, Electric power 

plants, Electric utilities, Incorporation 

by reference, Reporting and 

recordkeeping requirements. 

By the Commission. 

Philis J. Posey, 

Deputy Secretary. 

■ In consideration of the foregoing, the 

Commission amends Chapter I, Title 18, 

part 38 of the Code of Federal 

Regulations, as follows: 

PART 38—BUSINESS PRACTICE 

STANDARDS AND COMMUNICATION 

PROTOCOLS FOR PUBLIC UTILITIES 

■ 1. The authority citation for part 38 

continues to read as follows: 

Authority: 16 U.S.C. 791–825r, 2601–2645; 

31 U.S.C. 9701; 42 U.S.C. 7101–7352. 

■ 2. In § 38.2, paragraph (a)(4) is revised 

to read as follows: 

§ 38.2 Incorporation by reference of North 

American Energy Standards Board 

Wholesale Electric Quadrant standards. 

(a) * * * 

(4) Coordinate Interchange (WEQ–

004, June 22, 2006); 

* * * * * 

[FR Doc. E7–7892 Filed 4–27–07; 8:45 am] 

BILLING CODE 6717–01–P 

RAILROAD RETIREMENT BOARD 

20 CFR Part 220 

RIN 3220–AB50 

Determining Disability 

AGENCY: Railroad Retirement Board. 

ACTION: Final rule. 

SUMMARY: The Board amends its 

regulations to index the amount of 

earnings used to determine if an 

individual is engaged in substantial 

gainful activity (SGA) to any increase in 

the Social Security national average 

wage index, to increase from $200 to 

$530 the minimum amount of monthly 

earnings to count during a trial work 

period and then index that amount to 

the Social Security national average 

wage index. 

DATES: These rules are effective on April 

30, 2007. 

ADDRESSES: Beatrice Ezerski, Secretary 

to the Board, Railroad Retirement Board, 

844 N. Rush Street, Chicago, Illinois 

60611–2092. 

FOR FURTHER INFORMATION CONTACT: 

Marguerite P. Dadabo, Assistant General 

Counsel, Office of General Counsel, 

Railroad Retirement Board, 844 N. Rush 

Street, Chicago, Illinois 60611–2092, 

(312) 751–4945, TDD (312) 751–4701. 

SUPPLEMENTARY INFORMATION: The 

Railroad Retirement Act provides for 

disability annuities for employees, 

widow(er)s, and children of deceased 

railroad employees who are unable to 

engage in any regular employment 

because of a physical or mental 

impairment. Regular employment is 

defined by reference to the definition of 

substantial gainful activity under the 

Social Security Act. Sections 220.141 

and 220.142 of the Board’s regulations 

reflect this definition and define 

‘‘substantial gainful activity’’ (SGA) as 

work activity that involves doing 

significant physical or mental activities 

for pay or profit. Work activity is gainful 

if it is the kind of work usually done for 

pay or profit, whether or not profit is 

realized. Section 220.143 sets forth 

earnings levels at which the Board 

considers a person to be engaged in SGA 

regardless of the severity of his or her 

impairment. The amount of average 

monthly earnings that ordinarily 

demonstrates SGA was increased 

effective July 1, 1999, when the Board 


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21100 Federal Register / Vol. 72, No. 82 / Monday, April 30, 2007 / Rules and Regulations 

raised from $500 to $700 the average 

monthly earnings guidelines used to 

determine whether work done by a 

person is substantial gainful activity. 

These regulations increase certain 

thresholds for disabled workers. Under 

this rule, the average monthly earnings 

guideline, which is used to determine 

whether work done by disabled workers 

is substantial gainful activity, is 

increased to $740.00 for calendar year 

2001 and is thereafter automatically 

adjusted each year based on increases in 

the Social Security national average 

wage index. See 42 U.S.C. 409(k)(1). The 

amount that is used to determine if a 

disabled individual has performed 

‘‘services’’ during a trial work period 

also is subject to an automatic annual 

adjustment. These changes conform to 

changes in the regulations of the Social 

Security Administration that became 

final effective January 29, 2001 (65 FR 

82905, December 29, 2000). 

In order to be eligible for disability 

benefits, an applicant must not be 

performing substantial gainful activity. 

A beneficiary’s ongoing eligibility for 

disability benefits is also subject to this 

rule. Therefore, the Board has 

established both upper and lower 

thresholds as guidelines for 

determining, respectively, what is prima 

facie evidence of engaging in SGA and 

what is prima facie evidence of not 

engaging in SGA. Except for those who 

work in sheltered workshops, disabled 

workers with earnings between the two 

thresholds are subject to further 

examination. Currently, the upper and 

lower thresholds are $700 and $300, 

respectively. For those working in 

sheltered workshops, earnings below 

the upper threshold are prima facie 

evidence that the worker is not 

performing SGA. 

Under this rule, beginning January 1, 

2001, the upper threshold is adjusted 

annually, based on the Social Security 

national average wage index, to conform 

to the SGA level determined by the 

Social Security Administration (SSA) 

and published in the Federal Register 

each October as part of SSA’s notice that 

includes new adjustments. Under this 

rule, the SGA amount will never be 

lower than the previous year’s amount. 

However, there may be years in which 

there is no increase. 

As part of this rule, the Board also 

eliminates the lower SGA threshold so 

that earnings below the upper threshold 

would be prima facie evidence that a 

disabled worker is not engaging in SGA, 

regardless of whether the worker is 

working in competitive employment or 

in a sheltered workshop. 

The Board also increases the monthly 

amount that a disabled worker may earn 

within a trial work period without 

jeopardizing the amount of time 

remaining in the trial work period. This 

change is being made to conform the 

Board’s regulations to the monthly 

earnings allowed within a trial work 

period in the regulations of the Social 

Security Administration. Currently, a 

disabled worker may test his or her 

ability to work and still be considered 

disabled by working during a trial work 

period. A disabled beneficiary will 

continue to be considered disabled until 

the beneficiary performs ‘‘service’’ in at 

least nine months within a rolling 60- 

month period. Since 1990, the Board 

has considered any month in which at 

least more than $200 is earned to be a 

month of service. 

Under the final rule, the threshold 

amount is increased to $530 for 2001, 

and then is adjusted annually thereafter 

based on the Social Security national 

average wage index to conform to the 

amount determined by the Social 

Security Administration and published 

in the Federal Register every October. 

The Board notes that while the SGA 

amount has increased since 1990, 

during the same period, the trial work 

period services amount has remained 

unchanged. As with the change shown 

for the SGA threshold amount, the trial 

work period amount will never be lower 

than the previous year’s amount. 

Final Regulations—Background 

The Board revises Sections 

220.143(b)(2) and (b)(4) to adjust 

annually the earnings guidelines that we 

use to determine whether an employee 

is engaged in substantial gainful 

activity. Beginning January 2001, the 

average monthly earnings considered to 

be substantial gainful activity is 

increased from $700 to $740. Beginning 

January 2001, the guideline is the higher 

of the previous year’s amount or an 

increased amount as computed and 

published by the Social Security 

Administration based on the Social 

Security national average wage index. 

The Board also amends Sec. 

220.143(b)(2) and (b)(4) to clarify that 

this guideline applies to earnings from 

sheltered work. This standard also 

applies to the self-employed in certain 

circumstances by cross-references that 

have been and continue to be present in 

Sec. 220.144 of this part. 

The Board revises Sec. 220.143(b)(3) 

and (b)(6) to provide, beginning January 

2001, that we will ordinarily find that 

an employee whose average monthly 

earnings are equal to or less than the 

‘‘substantial gainful activity amount’’ set 

forth in Sec. 220.143(b)(2) has not 

engaged in substantial gainful activity 

without considering other information 

beyond the employee’s earnings. The 

Board also makes conforming changes to 

Sec. 220.143(b)(4). 

The Board revises Sec. 220.170 to 

increase from $200 to $530 the 

minimum amount of monthly earnings 

that we consider shows that a person is 

performing or has performed ‘‘services’’

for counting trial work period months, 

effective January 1, 2001. We also will 

adjust the amount annually to the 

higher of the previous year’s amount or 

an increased amount based on the 

Social Security national average wage 

index, beginning January 1, 2002. In 

addition, effective January 1, 2001, for a 

self-employed person with net earnings 

from self-employment equal to or less 

than the dollar threshold for ‘‘services’’

the Board increases the number of hours 

of self-employed work in a business 

each month that the Board will consider 

shows services are performed from more 

than 40 hours to more than 80 hours. 

The Board published the proposed 

rule on June 9, 2003 (68 FR 34341) and 

invited comments by August 8, 2003. 

No comments were received. This final 

rule is similar to the proposed rule 

published on June 9, 2003 except for the 

following changes that have been made 

to the proposed draft to be more 

consistent with similar regulations 

issued by the Social Security 

Administration (SSA) and to provide 

clarification about the subject matter: 

• § 220.143(b)(2)—A phrase has been 

added to provide clarification 

concerning earnings from sheltered 

employment. 

• § 220.143(b)(2)(i) and (ii)—The year 

2002 in both sections has been changed 

to 2001 to be more consistent with the 

other sections being revised. 

• § 220.143 Table 1—The reference to 

calendar year 2001 and the 

corresponding monthly earnings for that 

year have been eliminated for 

consistency with the other sections 

being revised. 

• § 220.143(b)(4)—The phrase 

‘‘Before January 1, 2002’’ has been 

removed from the heading because the 

section deals with sheltered 

employment before and after January 1, 

2002. The year 2002 in the first sentence 

has been changed to 2001 to be more 

consistent with other sections being 

revised. The phrase ‘‘in paragraph 

(b)(2)’’ has been changed to ‘‘in Table 1 

of this section’’ wherever it appears. A 

new sentence was added at the end of 

this subsection to explain what occurs 

for months beginning January 1, 2001 

for claimants working in sheltered 

workshops. 

• § 220.143(b)(6)(i) and (ii)—The year 

2002 in both sections has been changed 


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Federal Register / Vol. 72, No. 82 / Monday, April 30, 2007 / Rules and Regulations 21101 

to 2001 to be more consistent with the 

other sections being revised. 

• § 220.170(b)—The first two 

sentences of this subsection have been 

revised to clarify the description of what 

is meant by ‘‘services.’’

• § 220.170(b)(2)(ii)—This subsection 

has been revised to state that if an 

individual performed more than 80 

hours, instead of the previous limit of 

40 hours, of self-employed activities in 

a business in a month beginning in 

calendar year 2001, the Board will 

consider services were performed. 

• § 220.170(b) Table 1—This table has 

been revised to show the $200 limit 

applies in calendar years 1990–2000, 

not 1990–2001 as shown in the 

proposed rule. Table 2—This table has 

been revised to change the hours of 

work for a self-employed individual 

from 40 hours to 80 hours beginning in 

calendar year 2001. 

The most significant revision to the 

proposed rule that was published in 

June, 2003 increases the minimum 

monthly hours of work from 40 to 80 

that show a self-employed individual 

performed services. This change makes 

the Board’s regulations consistent with 

those of the Social Security 

Administration, which were also 

modified when a final rule was 

published by that agency on December 

29, 2000, to show 80 hours. This change 

is less restrictive and will encourage 

beneficiaries with disabilities to more 

realistically test their ability to work 

with respect to self-employment 

activities. 

Collection of Information Requirements 

The amendments to this part do not 

impose information collection and 

record keeping requirements. 

Consequently, it need not be reviewed 

by the Office of Management and 

Budget under the authority of the 

Paperwork Reduction Act of 1995. 

Regulatory Impact Statement 

The primary purpose of this rule is to 

conform the Railroad Retirement Board 

rules governing substantial gainful 

activity and a trial work period to the 

regulations of the Social Security 

Administration. The Board published a 

proposed rule to amend these sections 

on June 9, 2003 (68 FR 34341) and 

invited comments by August 8, 2003. 

No comments were received. The draft 

final rule is similar to the proposed rule 

except for the changes identified in the 

Supplementary Information. The single 

most significant revision to the 

proposed rule that was published in 

June 2003 increases the minimum 

monthly hours of work from 40 to 80 

that show that a self-employed 

individual performed services. This 

change and the other changes made by 

the final draft rule, like the changes in 

the published proposed regulation, have 

been made in order to make the 

regulations of the Railroad Retirement 

Board more consistent with similar 

regulations issued by the Social Security 

Administration and to provide 

clarification about the subject matter. In 

addition, the changes made by this rule 

will generally make the current 

regulatory provisions less restrictive in 

order to encourage individuals to try to 

return to work. For all of these reasons, 

the decision was made to have the rule 

take effect upon publication. 

Prior to publication of this final rule, 

the Board submitted the rule to the 

Office of Management and Budget for 

review pursuant to Executive Order 

12866. Executive Order 12866 directs 

agencies to assess all costs and benefits 

of available regulatory alternatives and 

when regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety effects, distributive impacts, 

and equity). A regulatory impact 

analysis (RIA) must be prepared for 

rules that constitute significant 

regulatory action, including rules that 

have an economic effect of $100 million 

or more annually. This final rule is not 

a major rule in terms of the aggregate 

costs involved. Specifically, we have 

determined that this final rule is not a 

major rule with economically significant 

effects because it would not result in 

increases in total expenditures of $100 

million or more per year. 

The amendments made by this final 

rule are significant. The amendments to 

§§ 220.143 and 220.170 will index the 

amount of earnings used to determine if 

an individual is engaged in substantial 

gainful activity (SGA) to any increase in 

the Social Security national average 

wage index, and increases from $200 to 

$530 the minimum amount of monthly 

earnings to count during a trial work 

period, and then index that amount to 

the Social Security national average 

wage index. 

Both the Regulatory Flexibility Act 

and the Unfunded Mandates Act of 1995 

define ‘‘agency’’ by referencing the 

definition of ‘‘agency’’ contained in 5 

U.S.C. 551(l). Section 551(l)(E) excludes 

from the term ‘‘agency’’ an agency that 

is composed of representatives of the 

parties or of representatives of 

organizations of the parties to the 

disputes determined by them. The 

Railroad Retirement Board falls within 

this exclusion (45 U.S.C. 231f(a)) and is 

therefore exempt from the Regulatory 

Flexibility Act and the Unfunded 

Mandates Act. 

Executive Order 13132 establishes 

certain requirements that an agency 

must meet when it promulgates a rule 

that imposes substantial direct 

compliance costs on State and local 

governments, preempts State law, or 

otherwise has Federalism implications. 

We have reviewed this final rule under 

the threshold criteria of Executive Order 

13132 and have determined that it 

would not have a substantial direct 

effect on the rights, roles, and 

responsibilities of States or local 

governments. 

In accordance with the provisions of 

Executive Order 12866, this regulation 

has been reviewed by the Office of 

Management and Budget. 

List of Subjects in 20 CFR Part 220 

Railroad Retirement. 

■ For the reasons stated in the preamble, 

the Railroad Retirement Board amends 

part 220 of chapter II of title 20 of the 

Code of Federal Regulations as follows: 

PART 220—DETERMINING DISABILITY 

■ 1. The authority citation for part 220 

continues to read as follows: 

Authority: 45 U.S.C. 231a; 45 U.S.C. 231f. 

Subpart L—Substantial Gainful Activity 

■ 2. Section 220.143 is amended by 

revising paragraphs (b)(2), (b)(3), (b)(4), 

and (b)(6) to read as follows: 

§ 220.143 Evaluation guides for an 

employed claimant. 

* * * * * 

(b) * * * 

(2) Earnings that will ordinarily show 

that the claimant has engaged in 

substantial gainful activity. The Board 

will consider that the earnings from the 

employed claimant (including earnings 

from sheltered work, see paragraph 

(b)(4) of this section) show that the 

claimant engaged in substantial gainful 

activity if: 

(i) Before January 1, 2001, the 

earnings averaged more than the 

amount(s) in Table 1 of this section for 

the time(s) in which the claimant 

worked. 

(ii) Beginning January 1, 2001, the 

earnings are more than an amount 

determined for each calendar year to be 

the larger of: 

(A) The amount for the previous year, 

or 

(B) The amount established by the 

Social Security Administration to 

constitute substantial gainful activity for 

such year. 


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21102 Federal Register / Vol. 72, No. 82 / Monday, April 30, 2007 / Rules and Regulations 

TABLE 1.—AMOUNTS INDICATING SUBSTANTIAL GAINFUL ACTIVITY PERFORMED

For months 

Monthly earnings averaged 

more than 

In calendar years before 

1976 .................................. $200 

In calendar year 1976 .......... 230 

In calendar year 1977 .......... 240 

In calendar year 1978 .......... 260 

In calendar year 1979 .......... 280 

In calendar years 1980–1989 300 

January 1990–June 1999 ..... 500 

July 1999–December 2000 .. 700 

(3) Earnings that will ordinarily show 

that the claimant has not engaged in 

substantial gainful activity. Beginning 

January 1, 2001, if the claimant’s 

earnings are equal to or less than the 

amount(s) determined under paragraph 

(b)(2)(ii) of this section for the year(s) in 

which the claimant works, the Board 

will generally consider that the earnings 

from the claimant’s work as an 

employee will show the claimant has 

not engaged in substantial gainful 

activity. Before January 1, 2001, if the 

claimant’s earnings were less than the 

amount(s) in Table 2 of this section for 

the year(s) in which the claimant 

worked, the Board will generally 

consider that the earnings from the 

claimant’s work as an employee will 

show that the claimant has not engaged 

in substantial gainful activity. 

TABLE 2.—AMOUNTS INDICATING SUBSTANTIAL GAINFUL ACTIVITY NOT

PERFORMED

For months 

Monthly earnings averaged 

less than 

In calendar years before 

1976 .................................. $130 

In calendar year 1976 .......... 150 

In calendar year 1977 .......... 160 

In calendar year 1978 .......... 170 

In calendar year 1979 .......... 180 

In calendar years 1980–1989 190 

In calendar years 1990–2000 300 

(4) If the claimant worked in a 

sheltered workshop. Before January 1, 

2001 if the claimant worked in a 

sheltered workshop or a comparable 

facility especially set up for severely 

impaired persons, the Board will 

ordinarily consider that the claimant’s 

earnings from this work show that the 

claimant has engaged in substantial 

gainful activity if the claimant’s 

earnings average more than the amounts 

in Table 1 of this section. Average 

monthly earnings from a sheltered 

workshop or a comparable facility that 

are equal to or less than those indicated 

in Table 1 of this section will ordinarily 

show that the claimant has not engaged 

in substantial gainful activity without 

the need to consider the other 

information, as described in paragraph 

(b)(6) of this section, regardless of 

whether they are more or less than those 

indicated in paragraph (b)(3) of this 

section. When the claimant’s earnings 

from a sheltered workshop or 

comparable facility are equal to or less 

than those amounts indicated in Table 

1 of this section, the Board will consider 

the provisions of paragraph (b)(6) of this 

section only if there is evidence that the 

claimant may have done substantial 

gainful activity. For work performed in 

a sheltered workshop or comparable 

facility beginning January 1, 2001, the 

rules of paragraph (b)(2), (3), and (6) 

apply the same as they do to any other 

work done by an employee. 

* * * * * 

(6) Earnings that are not high enough 

to ordinarily show that the claimant 

engaged in substantial gainful activity. 

(i) Before January 1, 2001, if the 

claimant’s average monthly earnings 

were between the amounts shown in 

paragraphs (b)(2) and (3) of this section, 

the Board will generally consider other 

information in addition to the 

claimant’s earnings (see paragraph 

(b)(6)(iii) of this section). This rule 

generally applies to employees who did 

not work in a sheltered workshop or a 

comparable facility, although the Board 

may apply it to some people who work 

in sheltered workshops or comparable 

facilities (see paragraph (b)(4) of this 

section). 

(ii) Beginning January 1, 2001, if the 

claimant’s average monthly earnings are 

equal to or less than the amounts 

determined under paragraph (b)(2) of 

this section, the Board will generally not 

consider other information in addition 

to the claimant’s earnings unless there 

is evidence indicating that the claimant 

may be engaging in substantial gainful 

activity or that the claimant is in a 

position to defer or suppress his or her 

earnings. 

(iii) Examples of other information the 

Board may consider include, whether—

(A) The claimant’s work is 

comparable to that of unimpaired 

people in the claimant’s community 

who are doing the same or similar 

occupations as their means of 

livelihood, taking into account the time, 

energy, skill, and responsibility 

involved in the work, and 

(B) The claimant’s work, although 

significantly less than that done by 

unimpaired people, is clearly worth the 

amounts shown in paragraph (b)(2) of 

this section, according to pay scales in 

the claimant’s community. 

Subpart N—Trial Work Period and 

Reentitlement Period for Annuitants 

Disabled for any Regular Employment 

■ 3 . Section 220.170 is amended by 

revising paragraph (b) to read as follows: 

§ 220.170 The trial work period. 

* * * * * 

(b) What the Board means by services. 

When used in this section, services 

means any activity (whether legal or 

illegal), even though it is not substantial 

gainful activity, which is done in 

employment or self-employment for pay 

or profit, or is the kind normally done 

for pay or profit. We generally do not 

consider work done without 

remuneration to be services if it is done 

merely as therapy or training, or if it is 

work usually done in a daily routine 

around the house, or in self-care. 

(1) If the claimant is an employee. 

The Board will consider the claimant’s 

work as an employee to be services if: 

(i) Before January 1, 2002, the 

claimant’s earnings in a month were 

more than the amount(s) indicated in 

Table 1 of this section for the year(s) in 

which the claimant worked. 

(ii) Beginning January 1, 2002, the 

claimant’s earnings in a month are more 

than an amount determined for each 

calendar year to be the larger of: 

(A) Such amount for the previous 

year, or 

(B) The amount established by the 

Social Security Administration for such 

year as constituting the amount of 

monthly earnings used to determine 

whether a person has performed 

services for counting trial work period 

months. 

(2) If the claimant is self-employed. 

The Board will consider the claimant’s 

activities as a self-employed person to 

be services if: 


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Federal Register / Vol. 72, No. 82 / Monday, April 30, 2007 / Rules and Regulations 21103 

(i) Before January 1, 2002, the 

claimant’s net earnings in a month were 

more than the amount(s) indicated in 

Table 2 of this section for the year(s) in 

which the claimant worked, or the 

hours the claimant worked in the 

business in a month are more than the 

number of hours per month indicated in 

Table 2 for the years in which the 

claimant worked. 

(ii) Beginning January 1, 2002, the 

claimant worked more than 80 hours a 

month in the business, or the claimant’s 

net earnings in a month are more than 

an amount determined for each calendar 

year to be the larger of: 

(A) Such amount for the previous 

year, or 

(B) The amount established by the 

Social Security Administration for such 

year as constituting the amount of 

monthly earnings used to determine 

whether a person has performed 

services for counting trial work period 

months. 

TABLE 1.—FOR NON SELFEMPLOYED

For months You earn more 

than 

In calendar years before 

1979 .................................. $50 

In calendar years 1979–1989 75 

In calendar years 1990–2000 200 

In calendar year 2001 .......... 530 

TABLE 2.—FOR THE SELF-EMPLOYED

For months 

Your net earnings are more 

than 

Or you work in 

the business 

more than 

(hours) 

In calendar years before 1979 ................................................................................................................................ $50 15 

In calendar years 1979–1989 .................................................................................................................................. 75 15 

In calendar years 1990–2000 .................................................................................................................................. 200 40 

In calendar year 2001 .............................................................................................................................................. 530 80 

* * * * * 

Dated: April 24, 2007. 

By Authority of the Board. 

Beatrice Ezerski, 

Secretary to the Board. 

[FR Doc. E7–8155 Filed 4–27–07; 8:45 am] 

BILLING CODE 7905–01–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Parts 1 and 602 

[TD 9324] 

RIN 1545–BF04 

Designated Roth Accounts Under 

Section 402A 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Final Regulations. 

SUMMARY: This document contains final 

regulations under sections 401(k), 

402(g), 402A, and 408A of the Internal 

Revenue Code (Code) relating to 

designated Roth accounts. These final 

regulations provide guidance 

concerning the taxation of distributions 

from designated Roth accounts under 

qualified cash or deferred arrangements 

under section 401(k). These final 

regulations will affect administrators of, 

employers maintaining, participants in, 

and beneficiaries of section 401(k) and 

section 403(b) plans, as well as owners 

and beneficiaries of Roth IRAs and 

trustees of Roth IRAs. 

DATES: Effective Date: These final 

regulations are effective April 30, 2007. 

Applicability Date: These regulations 

generally apply to taxable years 

beginning on or after January 1, 2007. 

For dates of applicability, see 

§§ 1.401(k)–1(f)(6), 1.402A–1, A–15, 

1.402A–2, A–4 and 1.408A–10, A–6. 

FOR FURTHER INFORMATION CONTACT: R. 

Lisa Mojiri-Azad or William D. Gibbs at 

202–622–6060, or Cathy A. Vohs, 202–

622–6090 (not toll-free numbers). 

SUPPLEMENTARY INFORMATION: 

Paperwork Reduction Act 

The collection of information 

contained in these final regulations was 

reviewed and approved by the Office of 

Management and Budget (OMB) for 

review in accordance with the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3507(d)) under control number 

OMB–1545–1992. 

The collection of information in these 

final regulations is in 26 CFR 1.402A–

2. This information is required to 

comply with the separate accounting 

and recordkeeping requirements of 

section 402A. This information will be 

used by the IRS and employers 

maintaining designated Roth accounts 

to insure compliance with the 

requirements of section 402A. The 

collection of information is required to 

obtain a benefit. The likely 

recordkeepers are state or local 

governments, business or other forprofit institutions, nonprofit 

institutions, and small businesses or 

organizations. 

The estimated annual burden per 

respondent under control number 

OMB–1545–1992 is 2.3 hours. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a valid control 

number assigned by the Office of 

Management and Budget. 

Books or records relating to a 

collection of information must be 

retained as long as their contents may 

become material in the administration 

of any internal revenue law. Generally, 

tax returns and tax return information 

are confidential, as required by 26 

U.S.C. 6103. 

Background 

This document contains final 

regulations under section 402A, and 

amendments to regulations under 

sections 401(k), 402(g), and 408A of the 

Internal Revenue Code. Section 402A, 

which sets forth rules for designated 

Roth contributions, was added to the 

Code by section 617(a) of the Economic 

Growth and Tax Relief Reconciliation 

Act of 2001, Public Law 107–16 (115 

Stat. 103) (EGTRRA), effective for 

taxable years beginning after December 

31, 2005. These final regulations also 

reflect certain provisions of the Pension 

Protection Act of 2006, Public Law 109–

280, (120 Stat. 780) (PPA ’06), including 

section 811 of PPA ’06, which repealed 

the sunset provisions of EGTRRA with 

respect to section 402A. 

Section 401(k) sets forth rules for 

qualified cash or deferred arrangements 

under which an employee may make an 

election between cash and an employer 

contribution to a plan qualified under 

section 401(a). Section 403(b) permits a 

similar salary reduction agreement 

under which payments are made to a 

section 403(b) plan. Section 402(e)(3) 

provides that an amount is not 


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