69116 Federal Register / Vol. 65, No. 221 / Wednesday, November 15, 2000 / Notices

15 15 U.S.C. 78f(b)(5).

16 15 U.S.C. 78s(b)(2).

17 17 CFR 200.30–3(a)(12).

execute their option orders. It is the

Commission’s view that the Exchange,

when increasing the maximum size of

orders that can be sent through AUTO–

X, should not disadvantage all

customers—the vast majority of which

enter orders for less than seventy-five

contracts—by making the AUTO–X

sytstem less reliable.

IV. Conclusion

For the foregoing reasons, the

Commission finds that the proposed

rule change is consistent with the Act

and the rules and regulations

thereunder applicable to a national

securities exchange, and, in particular,

with section 6(b)(5).15

It Is Therefore Ordered, pursuant to

section 19(b)(2) of the Act,16 that the

proposed rule change (SR–Phlx–99–32)

is approved.

For the Commission, by the Division of

Market Regulation, pursuant to delegated

authority.17

Margaret H. McFarland,

Deputy Secretary.

[FR Doc. 00–29186 Filed 11–14–00; 8:45 am]

BILLING CODE 8010–01–M

SOCIAL SECURITY ADMINISTRATION

[Social Security Acquiescence Ruling 00-

5 (6)]

Salamalekis v. Apfel; Entitlement to

Trial Work Period Before Approval of

an Award of Benefits and Before 12

Months Have Elapsed Since the

Alleged Onset of Disability—Titles II

and XVI of the Social Security Act.

AGENCY: Social Security Administration.

ACTION: Notice of Social Security

Acquiescence Ruling.

SUMMARY: In accordance with 20 CFR

402.35(b)(2), the Commissioner of Social

Security gives notice of Social Security

Acquiescence Ruling 00-5(6).

EFFECTIVE DATE: November 15, 2000.

FOR FURTHER INFORMATION CONTACT:

Cassia W. Parson, Litigation Staff, Social

Security Administration, 6401 Security

Boulevard, Baltimore, MD 21235-6401,

(410) 966-0446.

SUPPLEMENTARY INFORMATION: We are

publishing this Social Security

Acquiescence Ruling in accordance

with 20 CFR 402.35(b)(2).

A Social Security Acquiescence

Ruling explains how we will apply a

holding in a decision of a United States

Court of Appeals that we determine

conflicts with our interpretation of a

provision of the Social Security Act (the

Act) or regulations when the

Government has decided not to seek

further review of that decision or is

unsuccessful on further review.

We will apply the holding of the

Court of Appeals’ decision as explained

in this Social Security Acquiescence

Ruling to claims at all levels of

administrative review within the Sixth

Circuit. This Social Security

Acquiescence Ruling will apply to all

determinations or decisions made on or

after November 15, 2000. If we made a

determination or decision on your

application for benefits between July 20,

2000, the date of the Court of Appeals’

decision, and November 15, 2000, the

effective date of this Social Security

Acquiescence Ruling, you may request

application of the Social Security

Acquiescence Ruling to the prior

determination or decision. You must

demonstrate, pursuant to 20 CFR

404.985(b)(2) or 416.1485(b)(2), that

application of the Ruling could change

our prior determination or decision in

your case.

Additionally, when we received this

precedential Court of Appeals’ decision

and determined that a Social Security

Acquiescence Ruling might be required,

we began to identify those claims that

were pending before us within the

circuit that might be subject to

readjudication if an Acquiescence

Ruling were subsequently issued.

Because we determined that an

Acquiescence Ruling is required and are

publishing this Social Security

Acquiescence Ruling, we will send a

notice to those individuals whose

claims we have identified which may be

affected by this Social Security

Acquiescence Ruling. The notice will

provide information about the

Acquiescence Ruling and the right to

request readjudication under the Ruling.

It is not necessary for an individual to

receive a notice in order to request

application of this Social Security

Acquiescence Ruling to the prior

determination or decision on his or her

claim as provided in 20 CFR

404.985(b)(2) or 416.1485(b)(2),

discussed above.

If this Social Security Acquiescence

Ruling is later rescinded as obsolete, we

will publish a notice in the Federal

Register to that effect as provided in 20

CFR 404.985(e) or 416.1485(e). If we

decide to relitigate the issue covered by

this Social Security Acquiescence

Ruling as provided by 20 CFR

404.985(c) or 416.1485(c), we will

publish a notice in the Federal Register

stating that we will apply our

interpretation of the Act or regulations

involved and explaining why we have

decided to relitigate the issue.

(Catalog of Federal Domestic Assistance,

Program Nos. 96.001 Social Security—

Disability Insurance; 96.002 Social

Security—Retirement Insurance; 96.004

Social Security—Survivors Insurance; 96.005

Special Benefits for Disabled Coal Miners;

96.006 Supplemental Security Income.)

Dated: October 19, 2000.

Kenneth S. Apfel,

Commissioner of Social Security.

Acquiescence Ruling 00–5 (6)

Salamalekis v. Apfel, 221 F.3d 828

(6th Cir. 2000)—Entitlement to Trial

Work Period Before Approval of an

Award of Benefits and Before 12 Months

Have Elapsed Since the Alleged Onset

of Disability—Titles II and XVI of the

Social Security Act.

Issue: Whether a claimant’s return to

substantial gainful activity (SGA) within

12 months of the alleged onset date of

his or her disability, and prior to an

award of benefits, precludes an award of

benefits and entitlement to a trial work

period.

Statute/Regulation/Ruling Citation:

Sections 222(c), 223, 1614(a)(3) and (4)

and 1619 of the Social Security Act (42

U.S.C. 422(c), 423, 1382c(a)(3) and (4)

and 1382h); 20 CFR 404.1505, 404.1520,

404.1592, 416.905, 416.906, 416.920;

Social Security Ruling (SSR) 82-52.

Circuit: Sixth (Kentucky, Michigan,

Ohio, Tennessee).

Salamalekis v. Apfel, 221 F.3d 828

(6th Cir. 2000).

Applicability of Ruling: This Ruling

applies to determinations or decisions at

all administrative levels (i.e., initial,

reconsideration, Administrative Law

Judge (ALJ) hearing and Appeals

Council).

Description of Case: Manuel G.

Salamalekis applied for Social Security

disability insurance benefits on October

1, 1991, alleging disability since April

24, 1991, due to a heart condition and

Parkinson’s Disease. On March 2, 1992,

less than a year after the alleged onset

of disability, Mr. Salamalekis returned

to work and promptly notified the

Agency of his return. On the same day

that Mr. Salamalekis returned to work,

we ‘‘determined he was entitled to

receive disability insurance benefits’’

and an award notice was sent to Mr.

Salamalekis on March 8, 1992. It was

not disputed that we were unaware that

Mr. Salamalekis had returned to work

when we determined his eligibility for

benefits. We subsequently learned of his

return to work. In May of 1992, we

notified Mr. Salamalekis that his claim

would be reviewed when his ‘‘9th

month of trial work’’ ended. He

Federal Register / Vol. 65, No. 221 / Wednesday, November 15, 2000 / Notices 69117

1The courts in Newton v. Chater, 92

Cir. 1996); Walker v. Secretary of Health and

Human Services, 943 F.2d 1257 (10th Cir. 1991);

McDonald v. Bowen, 818 F.2d 559 (7th Cir. 1986)

found that the pertinent provision of SSR 82-52 was

inconsistent with the Social Security Act.

2SSR 91-7c superseded SSR 82-52, but only to the

extent that SSR 82-52 discussed former procedures

used to determine disability in children. The issue

in this AR does not relate to those former

procedures and the cited policy statement in SSR

82-52 remains in effect.

3Section 222(c)(2) of the Act provides that ‘‘any

services rendered by an individual during a period

of trial work shall be deemed not to have been

rendered by such individual in determining

whether disability has ceased in a month during

such period.’’ Section 222(c)(3) of the Act provides,

in pertinent part, that ‘‘[a] period of trial work for

any individual shall begin with the month in which

he becomes entitled to disability insurance benefits

* * * ’’ Under section 222(c)(4) of the Act, a trial

work period ends with the ninth month, in any

period of 60 consecutive months, in which the

individual renders services (whether or not the 9

months are consecutive), or, if earlier, with the

month in which disability ceases.

4While the court in Salamalekis addressed SSR

82-52 in its opinion issued July 20, 2000, it should

be noted that final rules that reflect, clarify, and

provide a more detailed explanation and

justification for the SSR 82-52 policy at issue were

published in the Federal Register on July 11, 2000

(65 FR 42772) with an effective date of August 10.

The court in Salamalekis, apparently unaware of

the July 11th publication, simply noted that the

proposed rules to incorporate SSA’s position in SSR

82-52 had been published, but had not been

finalized; the court did not discuss the more

detailed explanation and justification for our policy

provided in the preamble to the final rules.

5That legislative history is found at S. Rep. No.

404, 89th Cong. 1st Sess. 98-99, reprinted in 1965

U.S. Code Cong. & Ad. News, 1943, 2038-39.

continued to work and received benefits

for approximately the next 2 years.

On March 25, 1994, we notified Mr.

Salamalekis that we intended to revise

our initial award determination finding

him disabled to a determination that he

was never disabled because he returned

to work on March 2, 1992, prior to the

Agency’s award of benefits and less than

12 months after the onset of his

impairment. We revised our initial

award determination, ceased payment of

Mr. Salamalekis’ benefits and assessed

him with a $30,080.20 overpayment. An

ALJ affirmed the revised determination

and the Appeals Council denied review.

Mr. Salamalekis sought judicial review

in the Federal district court where a

United States Magistrate Judge affirmed

SSA’s final decision.

On his appeal to the United States

Court of Appeals for the Sixth Circuit,

Mr. Salamalekis argued that he was

disabled and was entitled to a 9-month

trial work period beginning with his

return to work in March 1992, plus a 3-

month reentitlement period. For this

reason, Mr. Salamalekis contended that

the Agency should not have considered

his work during this period as evidence

of substantial gainful activity

demonstrating that he was not disabled.

Holding: The Sixth Circuit held that

Mr. Salamalekis was entitled to a trial

work period regardless of whether he

returned to work before or after SSA’s

award of benefits. Consequently, it

reversed and remanded the case to the

district court with instructions to return

the case to SSA for a recalculation of the

overpayments owed by Mr. Salamalekis.

The court found that according to the

plain language of the Social Security

Act (the Act), an individual may take

advantage of a trial work period once he

becomes entitled to disability insurance

benefits.

According to the court, Mr.

Salamalekis had satisfied all five

prerequisites for entitlement to benefits

under section 223(a) of the Act when he

returned to his job. He was insured for

disability insurance benefits; he was

below retirement age; he filed an

application for benefits; the 5-month

waiting period had expired; and he was

under a disability. The court rejected

the Agency’s argument that it should

apply SSR 82-52 and find that Mr.

Salamalekis was never disabled in view

of his return to work within 12 months

of his alleged disability onset date. In so

doing, the court noted that at the time

Mr. Salamalekis returned to work his

impairment was ongoing and was

expected to last for 12 months.

The court found that the relevant

language from SSR 82-52 was

inconsistent with the plain language of

the Act. In addition, the court noted

‘‘the Seventh, Eighth and Tenth Circuits

have also held that a claimant is entitled

to a trial work period if the waiting

period has expired and the claimant’s

impairment is expected to last for 12

months, regardless of whether the

Agency has made an award

determination and regardless of whether

the impairment has actually lasted 12

months.’’ 1

Statement as to How Salamalekis Differs

From SSA’s Interpretation of the Social

Security Act

Under the Act, an individual who is

entitled to disability insurance benefits

is generally entitled to a trial work

period. The individual can test his or

her ability to work for up to 9 months

without that work activity affecting his

or her entitlement to benefits. However,

to be entitled to a trial work period, the

individual must be entitled to disability

insurance benefits. In order to be

entitled to disability insurance benefits,

the individual must be disabled, i.e., he

or she must have an impairment that

has prevented, or can be expected to

prevent him or her from performing

substantial gainful activityfor at least 12

months. See Sections 223(a)(1)(D) and

(d)(1)(A) of the Act.

SSR 82-52 contains a clear statement

of SSA policy on this issue 2 as follows:

When the [individual’s] return to work

demonstrating ability to engage in SGA

occurs before approval of the award and prior

to the lapse of the 12-month period after

onset, the claim must be denied.

The Sixth Circuit held, however, that

SSR 82-52 is inconsistent with the plain

language of section 222(c) of the Act.3

The holding in Salamalekis is

inconsistent with our policy because it

permits a claimant to be found to be

under a disability, and entitled to

benefits and a trial work period even if

he or she engages in work activity

demonstrating the ability to engage in

substantial gainful activity before the

lapse of the 12-month period after the

alleged disability onset date and before

a decision by SSA to award benefits.4

Our interpretation is that a claimant

cannot be found to have been under a

disability if, at the time we are

adjudicating the claim, the evidence

shows that his or her impairment no

longer prevents the performance of

substantial gainful activity and that it

had not done so for at least 12

continuous months. In the preamble to

our August 10, 2000, final rules, we

explain why we believe that this

interpretation is consistent with the

relevant statutory language and with the

legislative history of the 12-month

duration requirement. That legislative

history indicates that Congress intended

that the disability program not ‘‘result in

the payment of disability benefits in

cases of short-term, temporary

disability.’’ 5

Explanation of How SSA Will Apply

The Salamalekis Decision Within the

Circuit

This Ruling applies only to cases in

which the claimant resides or resided in

Kentucky, Michigan, Ohio or Tennessee

at the time of the determination or

decision at any level of administrative

review, i.e., initial, reconsideration, ALJ

hearing or Appeals Council review.

This Ruling applies to claims for title

II benefits based on disability. It also

applies to claims for title XVI benefits

based on disability as explained below.

A claim for title II disability insurance

benefits, widow(er)’s insurance benefits

based on disability or child’s insurance

benefits based on disability in which the

claimant returns to work within 12

months of the established onset date of

an impairment which could otherwise

be the basis for a finding of disability

should be allowed and the claimant

granted a trial work period if the

following conditions are met:

69118 Federal Register / Vol. 65, No. 221 / Wednesday, November 15, 2000 / Notices

6Pursuant to statutory amendments made by

Public Law 99-643, effective July 1, 1987, the trial

work period provisions no longer apply to title XVI

disability claims. Beginning July 1, 1987, a disabled

individual, who was eligible to receive ‘‘regular’’

SSI benefits under section 1611 of the Act (or a

federally administered State supplementary

payment) for a month and subsequently has

earnings ordinarily considered to represent

substantial gainful activity, will move directly to

section 1619 status rather than be accorded a trial

work period. This Ruling extends to such

individuals, i.e., a claim for title XVI benefits based

on disability should be allowed and the claimant

granted section 1619 status if the claimant would

otherwise be eligible for section 1619 status and the

same conditions set out above for title II claims

based on disability are met.

(1) the claimant establishes that, at the

time he or she returned to work and

thereafter, the impairment was still

expected to last for at least 12

consecutive months from the date of

onset;

(2) the claimant returns to work after

the waiting period (if a waiting period

is applicable) but within the 12-month

period following the established onset

date; and

(3) the return to work demonstrating

an ability to engage in substantial

gainful activity occurs either before or

after approval of the award.

A claim for title XVI benefits based on

disability in which the claimant returns

to work within 12 months of the

established onset date of an impairment

which could otherwise be the basis for

a finding of disability should be allowed

and the claimant granted section 1619

status 6 if the following conditions are

met:

(1) The claimant establishes that, at

the time he or she returned to work and

thereafter, the impairment was still

expected to last for at least 12

consecutive months from the date of

onset;

(2) The claimant returns to work in a

month subsequent to the month of

established onset but within the 12-

month period following the established

onset date;

(3) The claimant is eligible to receive

‘‘regular’’ SSI benefits under section

1611 of the Act (or a federally

administered State supplementary

payment) based on the impairment

(disregarding the effect the claimant’s

return to work within 12 months after

the date of onset would otherwise have

on eligibility for such benefits or

payment) for at least 1 month in the

period preceding the month in which he

or she returns to work;

(4) The claimant meets all other

nondisability requirements for section

1619 status; and

(5) The return to work demonstrating

an ability to engage in substantial

gainful activity occurs either before or

after approval of the award.

[FR Doc. 00-29191 Filed 11-14-00; 8:45 am]

BILLING CODE 4190-29

DEPARTMENT OF STATE

[Public Notice No. 3466]

Shipping Coordinating Committee;

Notice of Meeting

The Shipping Coordinating

Committee will conduct an open

meeting at 9 a.m. on Monday, December

11, 2000, in Room 6319, at U.S. Coast

Guard Headquarters, 2100 Second

Street, SW., Washington, DC 20593–

0001. This meeting will discuss the

upcoming 44th Session of the

Subcommittee on Stability and Load

Lines and on Fishing Vessels Safety

(SLF) and associated bodies of the

International Maritime Organization

(IMO) which will be held on September

17–21, 2001, at the IMO Headquarters in

London, England.

Items of discussion will include the

following:

a. Review of results from the previous

Session (SLF 43),

b. Harmonization of damage stability

provisions in the IMO instruments,

c. Revision of technical regulations of

the 1966 International Load Line

Convention,

d. Revisions to the Fishing Vessel

Safety Code and Voluntary Guidelines.

Members of the public may attend

this meeting up to the seating capacity

of the room. Interested persons may

seek information by writing: Mr. Paul

Cojeen, U.S. Coast Guard Headquarters,

Commandant (G–MSE–2), Room 1308,

2100 Second Street, SW., Washington,

DC 20593–0001 or by calling (202) 267–

2988.

Dated: November 8, 2000.

Stephen Miller,

Executive Secretary, Shipping Coordinating

Committee.

[FR Doc. 00–29244 Filed 11–14–00; 8:45 am]

BILLING CODE 4710–07–P

DEPARTMENT OF STATE

[Public Notice No. 3467]

Shipping Coordinating Committee;

Notice of Meeting

The Shipping Coordinating

Committee will conduct an open

meeting at 9:30 a.m. on Thursday,

December 14, 2000, in Room 6103 of the

U.S. Coast Guard Headquarters, 2100

2nd Street SW, Washington, DC 20593–

0001. The purpose of the meeting is to

finalize preparations for the 32nd

Session of the International Maritime

Organization (IMO) Sub-Committee on

Standards of Training and

Watchkeeping, which is scheduled for

January 22 to 26, 2001, at IMO

Headquarters in London. At this

meeting, papers received and the draft

U.S. positions will be discussed.

Among other things, the items of

particular interest are:

— Training and certification of maritime

pilots

— Unlawful practices associated with

certificates of competency (i.e., forged

certificates)

— Standard Marine Communication

Phrases

— Training in the use of Electronic

Chart Display and Information

Systems

— Guidance for training in ballast water

management

— Guidance for ships operating in icecovered waters

— Validation of an IMO model course

on assessment of competence

— Guidance associated with the

International Convention on

Standards of Training,

Certification and Watchkeeping for

Fishing Vessel Personnel Convention, as

adopted by the 1995 conference; not yet

ratified or in force.

Members of the public may attend the

meeting up to the seating capacity of the

room. Interested persons may seek

information by writing: LCDR Luke

Harden, Commandant (G–MSO–1), U.S.

Coast Guard Headquarters, Room 1210,

2100 2nd Street SW., Washington, DC

20593–0001 or by calling (202) 267–

0229.

Dated: November 8, 2000.

Stephen Miller,

Executive Secretary Shipping Coordinating

Committee.

[FR Doc. 00–29245 Filed 11–14–00; 8:45 am]

BILLING CODE 4210–07–P

OFFICE OF THE UNITED STATES

TRADE REPRESENTATIVE

[Docket No. WTO/DS–58]

WTO Dispute Settlement Proceeding

Regarding Section 609 of Public Law

101–162 Relating to the Protection of

Sea Turtles in Shrimp Trawl Fishing

Operations

AGENCY: Office of the United States

Trade Representative.

ACTION: Notice; request for comments.

SUMMARY: The Office of the United

States Trade Representative (USTR) is

providing notice that the government of