Federal Register / Vol. 60, No. 86 / Thursday, May 4, 1995 / Notices 22091

pollutant discharge, pollution control

and facilities permits applicable to coal

mining, preparation and transportation.

Pursuant to the Agreement, the Buyer

will acquire the real property interests,

the coal preparation facility, the

equipment and the permits (‘‘Assets’’)

from the Sellers. The Sellers shall assign

and delegate to the Buyer all rights and

obligations under various oil and gas

leases, farming leases, timber leases,

residential leases, licenses, franchises,

contracts, concessions and recorded and

unrecorded occupancy agreements

applicable to or for the use or

occupancy of the real estate to be sold.

The total purchase price under the

Agreement for the Assets is $6.05

million, of which $1.25 million shall be

paid at closing to be held no later than

June 30, 1995. The Buyer will deliver a

promissory note, secured by a letter of

credit, in the amount of $4.8 million,

bearing interest at the rate of a 8.004213

percent per annum, payable in 40 equal

quarterly installments of principal and

interest of $175,500, beginning on

September 30, 1995 and ending on June

30, 2005.

Under the Agreement, the Sellers

have agreed to indemnify the Buyer

against certain liabilities and

contingencies that may be asserted by

employees or former employees of

SACCo against the Buyer or by federal,

state or local agencies as a result of

noncompliance with laws relating to

mining operations.

For the Commission, by the Division of

Investment Management, pursuant to

delegated authority.

Margaret H. McFarland,

Deputy Secretary.

[FR Doc. 95–11040 Filed 5–3–95; 8:45 am]

BILLING CODE 8010–01–M

SMALL BUSINESS ADMINISTRATION

[License # 03/03–5171]

Consumer United Capital Corporation;

Notice of License Surrender

Notice is hereby given that Consumers

United Capital Corporation, (‘‘CUCC’’),

1150 Connecticut Avenue NW., Suite

205, Washington, D.C. 20036, has

surrendered its license to operate as a

small business investment company

under the Small Business Investment

Act of 1958, as amended (‘‘the Act’’).

CUCC was licensed by the Small

Business Administration on April 25,

1985.

Under the authority vested by the Act

and pursuant to the regulations

promulgated thereunder, the surrender

of the license was accepted on March

22, 1994, and accordingly, all rights,

privileges, and franchises derived

therefrom have been terminated.

(Catalog of Federal Domestic Assistance

Program No. 59.011, Small Business

Investment Companies)

Dated: April 27, 1995.

Robert D. Stillman,

Associate Administrator for Investment.

[FR Doc. 95–10952 Filed 5–3–95; 8:45 am]

BILLING CODE 8025–01–M

Investment Advisory Council; Public

Meeting

The U.S. Small Business Investment

Advisory Council will hold a public

meeting from 10 a.m. to 3 p.m.

Thursday, May 11, 1995, at the ANA

Hotel, located at 2900 M Street, NW,

Washington, DC, to discuss such matters

as may be presented by members, staff

of the U.S. Small Business

Administration, or others present.

For further information, write or call

Ed Cleveland, U.S. Small Business

Administration, 409 Third Street, SW,

Washington, DC 20416, (202) 205–6510.

Dated: April 27, 1995.

Dorothy A. Overal,

Director, Office of Advisory Council.

[FR Doc. 95–10926 Filed 5–3–95; 8:45 am]

BILLING CODE 8025–01–M

SOCIAL SECURITY ADMINISTRATION

[Social Security Acquiescence Ruling 95–

1(6)]

Preslar v. Secretary of Health and

Human Services; Definition of Highly

Marketable Skills for Individuals Close

to Retirement Age

AGENCY: Social Security Administration.

ACTION: Notice of Social Security

Acquiescence Ruling.

SUMMARY: In accordance with 20 CFR

422.406(b)(2), the Commissioner of

Social Security gives notice of Social

Security Acquiescence Ruling 95–1(6).

EFFECTIVE DATE: May 4, 1995.

FOR FURTHER INFORMATION CONTACT:

Gary Sargent, Litigation Staff, Social

Security Administration, 6401 Security

Blvd., Baltimore, MD 21235, (410) 965-

1695.

SUPPLEMENTARY INFORMATION: Although

not required to do so pursuant to 5

U.S.C. 552(a)(1) and (a)(2), we are

publishing this Social Security

Acquiescence Ruling in accordance

with 20 CFR 422.406(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 adjudication within the

Sixth Circuit. This Social Security

Acquiescence Ruling will apply to all

determinations and decisions made on

or after May 4, 1995. If we made a

determination or decision on your

application for benefits between January

21, 1994, the date of the Court of

Appeals’ decision and May 4, 1995, the

effective date of this Social Security

Acquiescence Ruling, you may request

application of the Social Security

Acquiescence Ruling to your claim if

you first demonstrate, pursuant to 20

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

application of the Ruling could change

our prior determination or decision.

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 for in

20 CFR 404.985(e) and 416.1485(e). If

we decide to relitigate the issue covered

by this Social Security Acquiescence

Ruling as provided for by 20 CFR

404.985(c) and 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

Programs Nos. 93.802 Social Security—

Disability Insurance; 93.803 Social

Security—Retirement Insurance; 93.805

Social Security—Survivors Insurance;

93.806—Special Benefits for Disabled Coal

Miners; 93.807—Supplemental Security

Income.)

Dated: November 14, 1994.

Shirley S. Chater,

Commissioner of Social Security.

Acquiescence Ruling 95–1(6)

Preslar v. Secretary of Health and

Human Services, 14 F.3d 1107 (6th Cir.

1994)—Definition of Highly Marketable

Skills for Individuals Close to

Retirement Age—Titles II and XVI of the

Social Security Act.

Issue: Whether, in order to find that

the skills of a claimant who is close to

retirement age (age 60–64) are ‘‘highly

marketable’’ within the meaning of the

Secretary’s regulations, the Social

Security Administration (SSA) must
22092 Federal Register / Vol. 60, No. 86 / Thursday, May 4, 1995 / Notices

1 Although the court of appeals only cited the

title II regulation concerning the evaluation of age,

section 404.1563, the corresponding title XVI

regulation, section 416.963, also was relevant in Mr.

Preslar’s case. These sections, entitled ‘‘Your age as

a vocational factor,’’ are virtually identical. Sections

404.1563(b)-(d) and 416.963 (b)-(d) specify three age

categories: ‘‘Younger person’’ (under age 50);

‘‘Person approaching advanced age’’ (age 50-54);

and ‘‘Person of advanced age’’ (age 55 or over). The

latter includes a subcategory—a person close to

retirement age (age 60-64).

first establish that the claimant’s skills

are sufficiently specialized and coveted

by employers as to make the claimant’s

age irrelevant in the hiring process and

enable the claimant to obtain

employment with little difficulty.

Statute/Regulation/Ruling Citation:

Sections 223(d)(2)(A) and 1614(a)(3)(B)

of the Social Security Act (42 U.S.C.

423(d)(2)(A) and 1382c(a)(3)(B)); 20 CFR

404.1520(f)(1), 404.1563(d), 404.1566(c),

416.920(f)(1), 416.963(d), 416.966(c); 20

CFR Part 404, Subpart P, Appendix 2,

sections 201.00(f) and 202.00(f); Social

Security Ruling 82–41.

Circuit: Sixth (Kentucky, Michigan,

Ohio, Tennessee)

Preslar v. Secretary of Health and

Human Services, 14 F.3d 1107 (6th Cir.

1994).

Applicability of Ruling: This Ruling

applies to determinations or decisions at

all administrative levels (i.e., initial,

reconsideration, Administrative Law

Judge (ALJ) hearing or Appeals

Council).

Description of Case: In April 1989, the

plaintiff, Walter Preslar, who was 61

years of age and had an eleventh grade

education, applied for Social Security

disability insurance benefits and

Supplemental Security Income benefits

based on disability. Mr. Preslar alleged

that he was disabled due to pain

resulting from hip and back injuries,

osteoarthritis and the late effects of

musculoskeletal and connective tissue

injuries. Following denial of his claims

at both the initial and reconsideration

levels of the administrative review

process, the plaintiff requested and

received a hearing before an ALJ. The

evidence provided at the hearing

included the testimony of a vocational

expert who testified that Mr. Preslar

could not perform any of his past

relevant work, which included food

truck driving, custodial work, and

bartending. The vocational expert also

testified, however, that Mr. Preslar

possessed truck driving skills and that

there were a significant number of

skilled light trucking jobs in the regional

economy that he could perform with no

significant vocational adjustment.

The ALJ found that Mr. Preslar could

not perform his past relevant work, but

that he retained the capacity to do a full

range of light work with only minor

limitations. The ALJ also found, based

upon testimony by the vocational

expert, that Mr. Preslar had ‘‘highly

marketable work skills,’’ including truck

driving, the ability to use hand and

power tools, and the ability to use a

cash register. Based on these findings,

the ALJ concluded that Mr. Preslar was

not disabled. The Appeals Council

denied Mr. Preslar’s request for review,

and the ALJ’s decision became the final

decision of the Secretary. This decision

was reviewed by a district court which

upheld the Secretary’s denial of

disability benefits, and the plaintiff

appealed to the Court of Appeals for the

Sixth Circuit.

Holding: The Sixth Circuit reversed

the decision of the district court. The

court of appeals noted that at the fourth

and fifth steps of the five-step sequential

evaluation process for determining

disability prescribed in the Secretary’s

regulations, once a claimant establishes

that he or she can no longer perform his

or her past relevant work because of a

severe impairment (step four), the

burden shifts to the Secretary to show

whether the claimant can perform other

work which exists in the national

economy, considering the claimant’s

residual functional capacity, age,

education and work experience (step

five). The court observed that for

purposes of step five, a claimant’s age is

to be evaluated under the four-tiered

structure of section 404.1563 of the

Secretary’s regulations.1 Among other

things, section 404.1563(d) provides

that if a claimant is of advanced age (55

or over), has a severe impairment, and

cannot do medium work, such claimant

may not be able to work unless he or she

has skills that can be transferred to less

demanding jobs which exist in

significant numbers in the national

economy. The court noted that, in

addition, section 404.1563(d) states that,

‘‘[i]f you are close to retirement age (60-

64) and have a severe impairment, we

will not consider you able to adjust to

sedentary or light work unless you have

skills which are highly marketable.’’

The Sixth Circuit observed that the

term ‘‘highly marketable’’ skills was not

expressly defined in the statutes,

regulations or case law. The court

stated, however, that it was evident

from the regulations that ‘‘highly

marketable’’ skills denoted something

more than ‘‘transferable’’ skills.

Specifically, the court noted that, under

section 404.1563(d) of the regulations,

claimants age 55 or over, including

those close to retirement age, must

possess skills easily transferable to other

occupations; the ‘‘highly marketable’’

requirement, on the other hand, only

applies to those age 60-64. In addition,

the court indicated that section

404.1563(a) of the regulations also sheds

light on how the Secretary is required to

evaluate a claimant’s age, noting that the

section states, in part:

Age refers to how old you are (your

chronological age) and the extent to which

your age affects your ability to adapt to a new

work situation and to do work in competition

with others.

Although the Sixth Circuit noted that,

under section 223(d)(2)(A) of the Act (42

U.S.C. 423(d)(2)(A)), vocational factors

usually are to be viewed in terms of

their effect on the ability to perform jobs

rather than obtain them, the court

nevertheless found that section

404.1563 of the regulations ‘‘recognizes

a direct relationship between age and

the likelihood of employment’’ and that,

as age increases, the four-tiered

structure of the regulation places an

increasingly heavy burden on the

Secretary to demonstrate that a claimant

is ‘‘easily employable.’’ The court

concluded that the regulations and other

judicial interpretations of ‘‘highly

marketable’’ skills imply that such skills

are those ‘‘which are sufficiently

coveted by employers and sufficiently

specialized or unique so as to offset the

disadvantage of advancing age’’ and

enable a claimant to obtain employment

with little difficulty. The court

indicated that the possession of such

skills may be shown by establishing that

a claimant’s skills were acquired

through specialized or extensive

education, training or experience and

that they give the claimant a significant

advantage or edge over other, younger,

potential employees competing for jobs

requiring the skills, giving consideration

to the number of such jobs available and

the number of individuals competing for

such jobs.

The court applied its interpretation of

‘‘highly marketable’’ skills to Mr.

Preslar’s case and concluded that the

Secretary had not assessed whether Mr.

Preslar’s skills were in some way

specialized or coveted by employers;

had not determined the amount of

training, education or experience

required of the plaintiff to attain his

skills; and had not assessed whether the

plaintiff enjoyed a competitive edge

over younger, potential employees with

whom he would compete for truck

driving jobs. Accordingly, the court

remanded the case to the Secretary for

reevaluation of whether the plaintiff

possessed ‘‘highly marketable’’ skills in

accordance with the court’s

interpretation of that term in section

404.1563(d) of the regulations.
Federal Register / Vol. 60, No. 86 / Thursday, May 4, 1995 / Notices 22093

1A copy of this list may be obtained by

contacting Ms. Neila Sheahan of the Office of the

General Counsel of USIA. The telephone number is

202/619–5030, and the address is Room 700, U.S.

Information Agency, 301 4th Street, S.W.,

Washington, D.C. 20547.

Statement as to How Preslar Differs

From Social Security Policy

At step five of the sequential

evaluation, SSA considers a claimant’s

chronological age in conjunction with

residual functional capacity, education

and work experience to determine

whether a claimant can do work other

than past relevant work. SSA weighs the

effect of increasing age by the extent it

erodes a claimant’s ability to adapt to

new work situations and to work in

competition with others.

To this end, SSA’s regulations

provide that in order to find that a

claimant whose sustained work

capability is limited to light work or less

and who is close to retirement age (60–

64) possesses skills that can be used in

(transferred to) other work, ‘‘there must

be very little, if any, vocational

adjustment required in terms of tools,

work processes, work settings, or the

industry.’’ 20 CFR Part 404, Subpart P,

Appendix 2, section 202.00(f). SSA’s

regulations provide the same rule for a

claimant whose sustained work

capability is limited to sedentary work

and who is of advanced age (55 or over).

20 CFR Part 404, Subpart P, Appendix

2, section 201.00(f). If the claimant’s

skills are transferable to other work

under this standard, SSA will consider

such skills ‘‘highly marketable’’ under

20 CFR 404.1563(d) and 416.963(d).

SSA’s regulations do not require a

finding that a claimant’s skills are

specialized and coveted so as to offset

the disadvantage that advancing age

may present in obtaining employment.

Instead, SSA’s regulations require that a

claimant (of any age) be found not

disabled if his or her residual functional

capacity and vocational abilities enable

him or her to work, but he or she

remains unemployed because of the

hiring practices of employers. The

evaluation of disability is based on the

ability to perform jobs in the national

economy and not the ability to obtain

them, 20 CFR 404.1566(c) and

416.966(c).

The Sixth Circuit’s interpretation of

‘‘highly marketable’’ imposes

requirements in contravention of the

Secretary’s regulations regarding the

vocational relevance of a claimant’s age.

Specifically, the court has interpreted

‘‘highly marketable’’ skills in 20 CFR

404.1563(d) to mean those skills which

are sufficiently specialized and coveted

by employers so as to make a claimant’s

age irrelevant in the hiring process and

enable the claimant to obtain

employment with little difficulty.

Explanation of How SSA Will Apply

The Preslar Decision Within the Circuit

This ruling applies only where the

claimant resides 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.

In the case of a claimant whose

sustained work capability is limited to

sedentary or light work as a result of a

severe impairment, who is closely

approaching retirement age (age 60-64),

and who has skills, an adjudicator will

consider the claimant’s skills to be

‘‘highly marketable’’ only if the skills

are sufficiently specialized and coveted

by employers as to make the claimant’s

age irrelevant in the hiring process and

enable the claimant to obtain

employment with little difficulty. In

determining whether a claimant’s skills

meet this definition of ‘‘highly

marketable,’’ an adjudicator will

consider:

(1) whether the skills were acquired

through specialized or extensive

education, training or experience; and

(2) whether the skills give the

claimant a competitive edge over other,

younger, potential employees with

whom the claimant would compete for

jobs requiring those skills, giving

consideration to the number of such

jobs available and the number of

individuals competing for such jobs.

SSA intends to clarify the regulations

at issue in this case, 20 CFR 404.1563

and 416.963, through the rule making

process and may rescind this Ruling

once such clarification is made.

[FR Doc. 95–10920 Filed 5–3–95; 8:45 am]

BILLING CODE 4190–29–F

DEPARTMENT OF STATE

[Public Notice 2198]

International Telecommunications

Advisory Committee;

Radiocommunications Sector; Study

Group 8—Mobile Services; Meeting

Notice

The Department of State announces

that the United States International

Telecommunications Advisory

Committee (ITAC),

Radiocommunication Sector Study

Group 8—Mobile Services will meet on

19 May 1995 at 10 AM to 1 PM, in room

1107 at the Department of State, 2201 C

Street, N.W., Washington, DC 20520.

Study Group 8 studies and develops

recommendations concerning technical

and operating characteristics of mobile,

radiodetermination, amateur and related

satellite services.

This May meeting will continue

preparations for the June 12–16, 1995

international meeting of Study Group 8.

It will also review activities concerning

the Inter-American Telecommunication

Commission Permanent Consultative

Committee III—Radiocommunications,

and begin preparations for the August

24–26 meeting of PCC.III.

Members of the General Public may

attend the meeting and join in the

discussions, subject to the instructions

of the Chairman, John T. Gilsenan.

Note: In order to gain access to State

Department for this meeting, please call 202–

647–0201 and leave your name, your social

security number, and date of birth. Please use

‘‘C’’ Street Entrance.

Dated: April 28, 1995.

Warren G. Richards,

Chairman, U.S. ITAC for ITURadiocommunication Sector.

[FR Doc. 95–10947 Filed 5–3–95; 8:45 am]

BILLING CODE 4710–45–M

UNITED STATES INFORMATION

AGENCY

Culturally Significant Objects Imported

for Exhibition; Determination

Notice is hereby given of the

following determination: Pursuant to

the authority vested in me by the Act of

October 19, 1965 (79 Stat. 985, 22 U.S.C.

2459), Executive Order 12047 of March

27, 1978 (43 F.R. 13359, March 29,

1978), and Delegation Order No. 85–5 of

June 27, 1985 (50 F.R. 27393, July 2,

1985), I hereby determine that the

objects in the exhibit, ‘‘Claude Monet

1840–1926’’ (see list 1) imported from

abroad for the temporary exhibition

without profit within the United States,

are of cultural significance. These

objects are imported pursuant to loan

agreements with the foreign lenders. I

also determine that the temporary

exhibition of the objects at The Art

Institute of Chicago, Chicago, Illinois

from on or about July 14, 1995, to on or

about November 26, 1995, is in the

national interest.

Public notice of this determination is

ordered to be published in the Federal

Register.