55656 Federal Register / Vol. 70, No. 183 / Thursday, September 22, 2005 / Notices 

1Section 202(d)(3) provides, in pertinent part, 

that ‘‘A child shall be deemed dependent upon his 

father or adopting father or his mother or adopting 

mother at the time specified in paragraph (1)(C) of 

this subsection. * * * [A] child deemed to be a 

child of a fully or currently insured individual 

pursuant to section 216(h)(2)(B) or section 216(h)(3) 

* * * shall be deemed to be the legitimate child of 

such individual,’’ and therefore presumptively 

dependent. 

Management Advisory Committee 

(AFMAC) will host a public meeting on 

Friday, September 23, 2005. The 

meeting will be take place at the U.S. 

Small Business Administration, 409 3rd 

Street, SW., Office of Chief Financial 

Officer Conference Room, 6th Floor, 

Washington, DC 20416. The AFMAC 

was established by the Administrator of 

the SBA to provide recommendation 

and advice regarding the Agency’s 

financial management including the 

financial reporting process, systems of 

internal controls, audit process and 

process for monitoring compliance with 

relevant laws and regulations. 

Anyone wishing to attend must 

contact Thomas Dumaresq in writing or 

by fax. Thomas Dumaresq, Chief 

Financial Officer , 409 3rd Street SW., 

Washington DC 20416, phone (202) 

205–6506, fax: (202) 205–6869, e-mail: 

thomas.dumaresq@sba.gov. 

Matthew K. Becker, 

Committee Management Officer. 

[FR Doc. 05–18889 Filed 9–21–05; 8:45 am] 

BILLING CODE 8025–01–P 

SOCIAL SECURITY ADMINISTRATION 

Social Security Acquiescence Ruling 

05–1(9); Gillett-Netting v. Barnhart; 

Application of State Law and the Social 

Security Act in Determining Eligibility 

for a Child Conceived By Artificial 

Means After an Insured Individual’s 

Death—Title II 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 05–1(9). 

EFFECTIVE DATE: September 22, 2005. 

FOR FURTHER INFORMATION CONTACT: 

Karen Aviles, Office of the General 

Counsel, Social Security 

Administration, 6401 Security 

Boulevard, Baltimore, MD 21235–6401, 

(410) 965–3457, or TTY (800) 966–5609. 

SUPPLEMENTARY INFORMATION: We are 

publishing this acquiescence ruling in 

accordance with 20 CFR 402.35(b)(2). 

An 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 (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 

acquiescence ruling to claims at all 

levels of administrative review within 

the Ninth Circuit. This acquiescence 

ruling will apply to all determinations 

or decisions made on or after September 

22, 2005. If we made a determination or 

decision on your application for benefits 

between June 9, 2004, the date of the 

court of appeals’ decision, and 

September 22, 2005, the effective date of 

this acquiescence ruling, you may 

request application of the acquiescence 

ruling to the prior determination or 

decision. You must demonstrate, 

pursuant to 20 CFR 404.985(b)(2), that 

application of this acquiescence ruling 

could change our prior determination or 

decision in your claim. 

Additionally, when we received this 

precedential court of appeals’ decision 

and determined that an 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 should we 

decide to issue an acquiescence ruling. 

Because an acquiescence ruling is 

required, we will send a notice to those 

individuals whose claims may be 

affected by the acquiescence ruling. The 

notice will provide information about 

this ruling and the right to request 

readjudication under it. It is not 

necessary for an individual to receive a 

notice in order to request application of 

this acquiescence ruling to the prior 

determination or decision on his or her 

claim. 

If this 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). If we decide to relitigate the 

issue covered by this acquiescence 

ruling as provided for by 20 CFR 

404.985(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) 

Dated: August 24, 2005. 

Jo Anne B. Barnhart, 

Commissioner of Social Security. 

Acquiescence Ruling 05–1(9) 

Gillett-Netting v. Barnhart, 371 F.3d 

593 (9th Cir. 2004), reh’g denied (9th 

Cir. Dec. 14, 2004)—Applicability of 

State Law and the Social Security Act in 

Determining Whether a Child Conceived 

By Artificial Means after an Insured 

Person’s Death is Eligible for Child’s 

Insurance Benefits—Title II of the Social 

Security Act. 

Issues: Whether a child conceived by 

artificial means after the death of the 

insured is a ‘‘child’’ for purposes of 

child’s insurance benefits under section 

202(d)(1) of the Social Security Act 

(Act) solely because he or she is the 

biological child of the insured. Whether 

such child can be deemed dependent on 

the deceased insured individual under 

section 202(d)(3) of the Act 1 because he 

is considered legitimate under State 

law. 

Statute/Regulation/Ruling Citation: 

Sections 202(d)(3), 216(e) and (h) of the 

Social Security Act (42 U.S.C. 402(d)(3), 

416(e) and (h)); 20 CFR 404.355. 

Circuit: Ninth (Alaska, Arizona, 

California, Guam, Hawaii, Idaho, 

Montana, Nevada, Northern Mariana 

Islands, Oregon, Washington). 

Gillett-Netting v. Barnhart, 371 F.3d 

593 (9th Cir. 2004), reh’g denied (9th 

Cir. Dec. 14, 2004). 

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: On August 19, 

1996, Rhonda Gillett-Netting filed 

applications for child’s insurance 

benefits on behalf of her twin children 

as survivors of the insured, Robert 

Netting. The twins, born 18 months after 

the insured’s death, were conceived 

through in-vitro fertilization using 

sperm that the insured had frozen and 

stored before he died. The Social 

Security Administration (Agency) 

denied the claims, finding that neither 

twin met the statutory definition of 

‘‘child’’ and that neither twin was 

dependent on the father at the time of 

his death as required by the Act. The 

district court upheld the Agency’s 

decision. After the district court denied 

the plaintiff’s motion for 

reconsideration, Gillett-Netting filed an 

appeal with the Court of Appeals for the 

Ninth Circuit. 

Holding: On appeal, the Ninth Circuit 

reversed the decision of the district 

court and held that the twins were 

entitled to benefits because, as the 

insured’s biological children, they met 

Federal Register / Vol. 70, No. 183 / Thursday, September 22, 2005 / Notices 55657 

2Ariz. Rev. Stat. § 8–601 (1975). 

3An applicant will be deemed a ‘‘child’’ under 

section 216(e)(1) if he or she is the biological child 

of the insured and his or her parents went through 

a marriage ceremony that would have been valid 

but for a legal impediment. See section 216(h)(2)(B) 

of the Act; 20 CFR 404.355(a)(2). An applicant will 

also be considered a ‘‘child’’ if: (1) the insured had, 

before his death, acknowledged parentage in 

writing, been decreed a parent by a court, or been 

ordered to pay child support; or (2) there is 

satisfactory evidence that the deceased insured is 

the biological parent of the applicant and the 

insured was, at the time of his death, living with 

the applicant or contributing to his support. See 

section 216(h)(3)(C) of the Act; 20 CFR 

404.355(a)(3)–(4). These additional tests for 

eligibility require action by the insured during the 

lifetime of the child. 

the ‘‘child’’ definition of the statute. 

Finding that there was no dispute about 

the twins’ parentage, the court held that 

section 216(h)(2), (3) of the Act had ‘‘no 

relevance to the issue before [it]’’ and 

thus there was no need to consult State 

inheritance law. The court concluded 

that the twins were deemed dependent 

upon the insured under section 

202(d)(3) of the Act because under 

Arizona law, they were his ‘‘legitimate’’

children. Under Arizona law, ‘‘[e]very 

child is the legitimate child of its 

natural parents and is entitled to 

support and education as if born in 

lawful wedlock.’’ 2 The court reasoned 

that because the insured was married to 

the mother of the twins and was the 

twins’ biological father, the twins are 

legitimate under State law. 

Statement as to How Gillett-Netting 

Differs From SSA’s Interpretation of the 

Social Security Act 

We determine that an individual may 

be eligible for child’s insurance benefits 

under section 202(d)(1) of the Act if he 

is the ‘‘child’’ of an insured individual 

as defined in section 216(e) and was 

dependent on the insured at the time of 

his death under section 202(d)(3). 

Section 216(e)(1) defines a ‘‘child’’ as 

‘‘the child or legally adopted child of an 

individual.’’ Section 216(h) provides the 

analytical framework that we must 

follow for determining whether a child 

is the insured’s child for the purposes 

of section 216(e). Section 216(h)(2)(A) 

directs us to ‘‘apply such law as would 

be applied in determining the 

devolution of intestate personal 

property by the courts of the State in 

which such insured individual is 

domiciled * * * at the time of his death 

***’’ (See also 20 CFR 404.355(a)(1)). 

A child who cannot inherit personal 

property from the deceased insured 

individual under State intestacy law 

may nonetheless be eligible for child’s 

insurance benefits under limited 

circumstances under sections 

216(h)(2)(B) and (3)(C); these 

circumstances do not apply to an afterconceived child. (See also 20 CFR 

404.355(a)).3 Consequently, to meet the 

definition of ‘‘child’’ under the Act, an 

after-conceived child must be able to 

inherit under State law. 

If the individual satisfies the 

definition of ‘‘child’’ under section 

216(e), the child must also show he or 

she ‘‘was dependent upon’’ the insured 

individual ‘‘at the time of [the insured’s] 

death’’ in order to be eligible for benefits 

under section 202(d)(1)(C)(ii). Under 

section 202(d)(3), a ‘‘legitimate’’ child is 

‘‘deemed dependent’’ upon the insured 

individual at the time of his death 

unless the child has been adopted by 

someone else. A child who satisfies the 

requirements of section 216(h)(2), (3) is 

deemed legitimate for purposes of 

section 202(d)(3) and, therefore, deemed 

dependent. Section 202(d)(3); Social 

Security Ruling 77–2c. Other children, 

though, must establish that they were 

living with their father at the time of his 

death or that he was contributing to 

their support in order to be found 

dependent under section 202(d)(3). 

The Ninth Circuit in Gillett-Netting 

held that the twins established ‘‘child’’

status under the Act solely because they 

are the biological children of the 

insured. The court found that section 

216(h) did not apply unless a child’s 

parentage is disputed. The court also 

found that, under Arizona law, an 

insured individual’s biological child 

conceived by artificial means after the 

death of the insured would be 

considered ‘‘natural’’ if the parents were 

married at the time of the insured’s 

death. Further, the court concluded that 

every child in Arizona is the legitimate 

child of his natural parents. As a result, 

the Ninth Circuit deemed the twins 

dependent on the insured under section 

202(d)(3) because it considered them to 

be legitimate under Arizona law. The 

court concluded that the twins were 

eligible for child’s benefits under 

section 202(d) of the Act. 

Explanation of How SSA Will Apply the 

Gillett-Netting Decision Within the 

Circuit 

This ruling applies only to cases 

involving an applicant for surviving 

child’s benefits who applies on the 

earnings record of a person who, at the 

time of death, had his permanent home 

in Alaska, Arizona, California, Guam, 

Hawaii, Idaho, Montana, Nevada, 

Northern Mariana Islands, Oregon, and 

Washington. While the court based its 

dependency determination on State law, 

it ruled that State law was irrelevant for 

determining ‘‘child’’ status if parentage 

was not in dispute. 

In a claim for survivor’s benefits, we 

will determine that a biological child of 

an insured individual who was 

conceived by artificial means after the 

insured’s death is the insured’s ‘‘child’’

for purposes of the Act. We will not 

apply section 216(h) of the Act in 

determining the child’s status. In 

addition, if such child is considered 

legitimate under State law, we will 

consider the child to be the insured’s 

‘‘legitimate’’ child and thus deemed 

dependent upon the insured for 

purposes of section 202(d)(3) of the Act. 

All of the States and jurisdictions 

within the Ninth Circuit, except Guam, 

have eliminated distinctions between 

legitimate and illegitimate children. 

These States allow all children the same 

rights which flow between parents and 

their children, regardless of the parents’

marital status. A child acquires these 

rights if he establishes that an 

individual is his parent under State 

family law provisions. Accordingly, if 

all other requirements are met, 

adjudicators will consider such child 

entitled to child’s benefits under section 

202(d). 

[FR Doc. 05–18920 Filed 9–21–05; 8:45 am] 

BILLING CODE 4191–02–P 

DEPARTMENT OF STATE 

[Public Notice 5192] 

Determination on Provision of 

Assistance to the United Nations 

Democracy Fund 

Pursuant to section 451 of the Foreign 

Assistance Act of l961, as amended (the 

‘‘Act’’) (22 U.S.C. 2261) and section 1–

100 of Executive Order 12163, as 

amended, I hereby authorize, 

notwithstanding any other provision of 

law, the use of up to $2,561,508 in fiscal 

year 2004 funds made available under 

chapter 3 of part I of the Act, up to 

$6,938,492 in FY 2004 and FY 2005 

funds made available under chapter 4 of 

part II of the Act, and up to $500,000 in 

FY 2005 funds made available under 

chapter 9 of part II of the Act, in order 

to provide assistance authorized by part 

I of the Act for a contribution to the 

United Nations Democracy Fund. This 

Determination supersedes and replaces 

the Determination of July 27, 2005, on 

Provision of Assistance to United 

Nations Democracy Fund. 

This Determination shall be reported 

to the Congress promptly, and shall be 

published in the Federal Register.