12166 Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules

than 6,000 poisonings of young children

with ‘‘moderate’’ or ‘‘major’’ (lifethreatening) effects. In addition, 42

children died in these accidents in

1992, the last year for which the

Commission has complete data.

During the more than 20 years since

the PPPA was adopted, the Commission

has found that, contrary to requirements

of the PPPA, ‘‘normal’’ adults of all ages

have difficulty using typical CRP.

Moreover, the Commission’s data

indicate that the difficulty in using CRP

results in a substantial number of

accidental ingestions by young children

because adults purchase hazardous

substances in non-CRP or disable CRP

by leaving the caps off or loose or

transferring the package contents to

another container.

Accordingly, the Commission sought

to address the safety hazard created by

difficult to open CRP. On January 19,

1983, the Commission published an

advance notice of proposed rulemaking

(‘‘ANPR’’) outlining its concerns in this

area and explaining and seeking

comment on possible actions to increase

the proper use of CRP, to simplify the

test procedures, and to make the test

procedures less affected by possible

variables. 48 FR 2389.

Older adults typically have the most

difficulty with CRP. Therefore, in order

to eliminate the currently-marketed CR

package designs that are most difficult

for ‘‘normal adults’’ of all ages to open,

the Commission indicated that older

adults, ages from 60–75 years, could be

substituted for the current panel of 100

18–45-year-olds.

After considering comments on the

ANPR and other available information,

the Commission proposed amendments

to the protocol to address this problem.

The proposed amendments would also

change the protocol to make the test

results more consistent and make the

child test easier to perform. The

Commission published its initial

proposal in the Federal Register of

October 5, 1990, for public comment. 55

FR 40856.

In addition to the requests for

comments in January 1983 and October

1990 noted above, the Commission

announced additional comment periods

on March 5, 1991, (56 FR 9181) and

March 21, 1994 (59 FR 13264). The

Commission’s staff evaluated the

comments received in response to each

of these requests.

On December 20, 1994, the

Commission was briefed by its staff on

the comments on the proposed rule and

the changes recommended by the staff.

On January 6, 1995, the Commission

met and decided to approve the rule

recommended by the staff, but to

exclude from the scope of the rule those

products that must be packaged in metal

cans or aerosol form. The staff made

appropriate changes to the draft Federal

Register notice that would issue the

final rule, and that notice was approved

by the Commission on February 6, 1995.

Immediately thereafter, the Coalition

for Responsible Packaging, an industry

group, raised concerns about the

Commission’s action. Most of these

concerns already had been addressed in

the rulemaking proceeding. Two

concerns, however, had not been the

subject of specific comments by

interested parties in this rulemaking.

Specifically, the new comments can

be summarized as follows. First, in

establishing an adult test panel

consisting of adults aged 60–75, the

Commission allegedly exceeded its

statutory authority to require that childresistant packaging not be difficult for

‘‘normal adults’’ to use properly.

Second, the rule allegedly addresses

consumer convenience, rather than

safety, which the comment claims is not

properly the subject of a Commission

regulation. In addition, the second

comment contends that to the extent

that child-resistant packages exist that

will pass the ‘‘senior friendly’’ test

approved by the Commission, market

forces will be an adequate and more

appropriate mechanism to ensure that

the more convenient packaging will be

adopted.

The Commission wanted to assure

that it had an opportunity to consider

these new arguments that had not

previously been raised in the

rulemaking. Accordingly, on February 8,

1995, the Commission voted

unanimously to withhold publication of

the Federal Register notice that would

have issued the final rule, to consider

the new arguments.

On February 21, 1995, the

Commission published a Federal

Register notice announcing that written

comments, limited to these two issues

only, could be submitted until March 7,

1995. 60 FR 9654. The Commission has

now decided to also receive oral

comments on these two new issues. Oral

comments on these new issues alone

may be presented to the Commission at

a Commission hearing beginning at

10:00 a.m., March 16, 1995.

A request to present oral comments

and an outline or text of the comments

must be received by the Commission on

or before March 10, 1995. The oral

comments shall be limited to 10

minutes per commenter. The

Commission reserves the right to further

limit repetitious comments. Comments

addressing other issues will not be

considered.

The hearing will be held in the

Commission’s Hearing Room, 4330 EastWest Highway, 4th Floor, Bethesda, MD

20814. Requests to present oral

comments and outlines or text of the

comments shall be mailed to the Office

of the Secretary, Consumer Product

Safety Commission, Washington, D.C.

20207, or delivered to the Office of the

Secretary, Consumer Product Safety

Commission, Room 501, 4340 East-West

Highway, Bethesda, MD 20814.

Dated: March 1, 1995.

Sadye E. Dunn,

Secretary, Consumer Product Safety

Commission.

[FR Doc. 95–5502 Filed 3–2–95; 11:42 am]

BILLING CODE 6355–01–P

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Social Security Administration

20 CFR Parts 404 and 416

[Regs. No. 4 and 16]

RIN 0960–AB73

Determining Disability and Blindness;

Substantial Gainful Activity Guides

AGENCY: Social Security Administration,

HHS.

ACTION: Proposed rules.

SUMMARY: These proposed rules reflect

amendments to the Social Security Act

(the Act) concerning the trial work

period and the disability insurance

reentitlement period. The proposed

rules also clarify certain standards we

use to determine whether work is

substantial gainful activity and whether

an individual is entitled to a trial work

period, thereby further explaining how

we determine disability under titles II

and XVI of the Act.

DATES: To be sure that your comments

are considered, we must receive them

no later than May 5, 1995.

ADDRESSES: Comments should be

telefaxed to (410) 966–0869 or

submitted in writing to the

Commissioner of Social Security,

Department of Health and Human

Services, P.O. Box 1585, Baltimore, MD

21235, or delivered to the Office of

Regulations, Social Security

Administration, 3–B–1 Operations

Building, 6401 Security Boulevard,

Baltimore, MD 21235, between 8 a.m.

and 4:30 p.m. on regular business days.

Comments may be inspected during

these same hours by making

arrangements with the contact person

shown below.
Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules 12167

FOR FURTHER INFORMATION CONTACT:

Sandy Bond, Office of Regulations,

Social Security Administration, 6401

Security Boulevard, Baltimore, MD

21235, (410) 965–1794.

SUPPLEMENTARY INFORMATION: We

propose to revise §§ 404.1573(c) and

416.973(c) to explain in greater detail

what we mean by work under special

conditions that take into account an

individual’s impairments. We have

added information found in Social

Security Ruling 84–25 to clarify these

regulatory provisions.

We propose to amend §§ 404.1574(a)

and 416.974(a) to add an expanded

description of how we determine

whether work performed by an

employee is substantial gainful activity,

what we mean by subsidized work, and

how we determine the value of a

subsidy. We explain in more detail: (1)

How earnings may show that an

employee has done substantial gainful

activity; (2) what we consider in

determining the amount an employee

earns; (3) how we use information from

an employer as to whether wages have

been subsidized; (4) how we determine

the value of subsidized earnings when

the value has not been explained

adequately by the employer; (5) how we

determine the amount of any subsidy

that may be provided by organizations

that employ individuals with

handicaps; and (6) how we evaluate

earnings received by persons working in

a sheltered or special environment. The

changes we are proposing to these

regulations reflect Social Security

Ruling 83–33.

These proposed rules also clarify how

we evaluate earnings from work in

sheltered workshops. Under

§§ 404.1574(b)(4) and 416.974(b)(4) of

our current and proposed regulations, a

person working in a sheltered workshop

ordinarily will be found not to be doing

substantial gainful activity when his or

her average monthly earnings are not

greater than the specified amounts that

ordinarily show that a worker who is

not in a sheltered workshop situation is

engaging in substantial gainful activity.

The average monthly earnings amount

currently specified is $500 per month

for years after 1989. These sections of

the current regulations do not provide

rules for evaluating sheltered workshop

earnings above the specified average

monthly earnings amount because it is

our policy that sheltered workshop

earnings that exceed the specified

average monthly earnings amount must

be evaluated under §§ 404.1574(b)(2)

and 416.974(b)(2) in the same way as

non-sheltered workshop earnings. We

propose to amend §§ 404.1574(b)(4) and

416.974(b)(4) to state this policy

explicitly.

Our current regulations also specify a

lower amount (currently $300 per

month for earnings in calendar years

after 1989) below which earnings

outside a sheltered workshop will

ordinarily show that an individual has

not engaged in substantial gainful

activity. Non-sheltered workshop

earnings that are above these amounts

but below the upper substantial gainful

activity threshold amounts, that is,

between $300 and $500 per month for

calendar years after 1989, are ordinarily

evaluated on a more case-by-case basis.

However, there is no such middle

ground for evaluating earnings from

sheltered workshop employment on a

more case-by-case basis because we do

not impose separate, lower amounts on

sheltered workshop employees as we

have done for employees outside of

sheltered workshops. If sheltered

workshop earnings exceed the upper

substantial gainful activity threshold

amounts, we ordinarily consider the

individual to have engaged in

substantial gainful activity. A Federal

circuit court decision, Iamarino v.

Bowen, 795 F.2d 59 (8th Cir. 1986), has

interpreted our regulations differently.

In Iamarino, the court held that because

our regulations provide a middle ground

for evaluating non-sheltered workshop

earnings between specified upper and

lower limits, we also must provide a

middle ground for evaluating sheltered

workshop earnings and not presume

substantial gainful activity when

sheltered workshop earnings exceed the

upper substantial gainful activity

threshold amounts. Because this was

not the intent of our regulations, we

propose to revise §§ 404.1574(b)(4) and

416.974(b)(4) to clarify our policy on

this point. At the same time we are

proposing a minor editorial correction

to the heading of paragraph

404.1574(b)(6) to change the word ‘‘of’’

to the word ‘‘or.’’

We also propose to add new

paragraphs 404.1574(d) and 416.974(d)

and to revise paragraph 404.1592(b) to

provide that volunteer work done under

programs mentioned in the Domestic

Volunteer Service Act of 1973 or the

Small Business Act shall not be

considered in determining whether an

individual has performed substantial

gainful activity or services in the trial

work period. This exclusion is currently

stated in Social Security Ruling 84–24

and is required by 42 U.S.C. 5044 and

15 U.S.C. 637.

We also propose to add new

§§ 404.1574a and 416.974a to explain

how we average earnings or selfemployment income to determine if a

person has been performing substantial

gainful activity and the periods used for

averaging. These amendments are based

upon Social Security Ruling 83–35 and

do not represent a change in policy.

We propose revisions to

§§ 404.1575(a) and 416.975(a) to explain

the order in which we will apply the

three tests used to determine whether

self-employed persons have engaged in

substantial gainful activity. We also

propose to expand the discussion in

§§ 404.1575(c) and 416.975(c) of what

we mean by substantial income for

purposes of determining whether a selfemployed person has engaged in

substantial gainful activity. These

revisions are based upon Social Security

Ruling 83–34 and do not represent a

change in policy.

We are also proposing to add to

§§ 404.1574, 404.1575, 416.974, and

416.975 an explanation, now found in

Social Security Ruling 84–25, of how we

evaluate periods of brief work activity to

determine if they should be considered

unsuccessful work attempts. The

proposed rules on an unsuccessful work

attempt provide, consistent with Social

Security Ruling 84–25, that we will not

consider work performed at the

substantial gainful activity level for

more than six months to be an

unsuccessful work attempt regardless of

why it ended or why earnings were

reduced to below the substantial gainful

activity earnings level. We propose to

amend §§ 404.1574, 404.1575, 416.974,

and 416.975 to explain when we will

find that substantial work activity that

is discontinued or reduced below a

specified level is an unsuccessful work

attempt. If there is an unsuccessful work

attempt, we disregard, for substantial

gainful activity determination purposes,

brief work attempts that do not

demonstrate sustained substantial

gainful activity. The criteria for an

unsuccessful work attempt differ

depending on whether the work effort is

for a duration of three months or less or

for a duration of between three and six

months. These proposed amendments to

the regulations on unsuccessful work

attempts reflect Social Security Ruling

84–25.

In addition, we propose to add to

§ 404.1584(d) the substantial gainful

activity earnings guidelines for

evaluating the work activity of blind

persons under title II for the years 1983

through 1994.

We propose to revise the last sentence

of current § 404.1592(b) to clarify that

we generally do not consider work

which is done without remuneration to

be ‘‘services’’ for purposes of

determining when the trial work period

has ended if it is done merely as therapy
12168 Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules

or training or if it is work usually done

in a daily routine around the house or

in self-care.

We propose revisions to § 404.1592(d)

to explain, consistent with Social

Security Ruling 82–52, that a trial work

period may not be awarded when a

claimant performs work demonstrating

the ability to engage in substantial

gainful activity within 12 months after

the alleged onset of disability and prior

to an award of benefits. These revisions,

which do not represent a change in

policy, are based upon our

interpretation of the duration

requirement of section 223(d)(1)(A) of

the Act and will clarify the issues raised

by the courts in McDonald v. Bowen,

800 F.2d 153 (7th Cir. 1986), amended

on rehearing, 818 F.2d 559 (7th Cir.

1987) and Walker v. Secretary of Health

and Human Services, 943 F.2d 1257

(10th Cir. 1991).

The trial work period is a period

during which a person who becomes

entitled to title II benefits may test his

or her ability to work and still be

considered disabled. Under section

222(c)(3) of the Act, the trial work

period begins with the month an

individual ‘‘becomes entitled’’ to title II

disability benefits and it generally ends

after 9 months of work whether or not

the 9 months are consecutive. Section

222(c) provides that work performed

during the trial work period may not be

considered in determining whether

‘‘disability has ceased’’ during that

period.

In order to be found disabled under

section 223(d)(1)(A), an individual must

be unable to engage in substantial

gainful activity by reason of a medically

determinable physical or mental

impairment which can be expected to

result in death or ‘‘which has lasted or

can be expected to last for a continuous

period of not less than 12 months.’’

(Emphasis added.) Under our

longstanding interpretation of this

provision as reflected in Social Security

Ruling 82–52, the duration requirement

to establish disability will be found not

to have been met and a disability claim

denied based on evidence that, within

12 months of the onset of an impairment

which prevented substantial gainful

activity and prior to an award of

benefits, the impairment no longer

prevents substantial gainful activity.

Under these circumstances, it is not

necessary to determine whether earlier

in the 12-month period the impairment

was expected to prevent the

performance of substantial gainful

activity for 12 months. We determine

whether an impairment is expected to

prevent substantial gainful activity for

12 months only when the claim is being

adjudicated within 12 months of onset

and the evidence shows that the

impairment currently prevents

substantial gainful activity. We believe

that Congress provided that disability

can be found based on an impairment

which ‘‘can be expected to last’’ 12

months simply to provide a means for

the Social Security Administration to

adjudicate disability claims without

having to wait 12 months from the

alleged onset of disability, rather than to

permit claims to be allowed in the face

of evidence that the claimant’s

impairment did not prevent substantial

gainful activity for 12 continuous

months.

Because section 222(c) provides that a

trial work period shall begin with the

month in which a person becomes

entitled to title II disability benefits, a

claimant who does not become entitled

to disability benefits cannot receive a

trial work period. Under our

interpretation of the duration

requirement, a person cannot be found

to be under a disability if he or she

performs work demonstrating the ability

to perform substantial gainful activity

within 12 months of onset and prior to

an award of benefits. Because the person

cannot become entitled to disability

benefits in this situation, there can be

no trial work period. On the other hand,

if a claimant returns to work prior to an

award of benefits, but more than 12

months from onset, the duration

requirement may be satisfied, the

claimant may become entitled to

benefits, and the work may be protected

by the trial work period even though the

work began prior to an award of

benefits.

We propose to revise § 404.1592(d)(2)

by deleting the rule stating that an

individual is not entitled to a trial work

period if he or she is receiving disability

insurance benefits in a second period of

disability for which a waiting period

was not required. We are also proposing

to revise § 404.1592(e) to show that the

trial work period ends when 9 service

months are completed within a

consecutive 60-month rolling period.

Prior to a statutory change, the trial

work period would end after 9 service

months no matter when they were

completed. These two proposed changes

reflect section 5112 of Public Law (Pub.

L.) 101–508 which took effect on

January 1, 1992.

We are proposing to make minor

wording changes to § 404.1592(d)(1) to

establish consistency with the wording

in § 404.1592(d)(2)(i). This rewording

does not represent a change in our

policy concerning who is entitled to a

trial work period.

We are also proposing to add a new

§ 404.1592(d)(2)(iv) to clarify our policy,

consistent with current § 404.1592(e),

that an individual is not entitled to a

trial work period if he or she

demonstrates an ability to engage in

substantial gainful activity level work at

any time after the onset of the

impairment(s) which prevented the

individual from engaging in substantial

gainful activity but before the month he

or she files an application for disability

benefits.

We are also proposing to amend

§ 404.1592a to clarify that the earnings

averaging and unsuccessful work

attempt concepts do not apply in

determining whether to pay benefits for

any month during or after the

reentitlement period after disability has

been determined to have ceased because

of the performance of substantial gainful

activity. Those concepts do apply

during and after the reentitlement

period in determining whether

disability has ceased due to the

performance of substantial gainful

activity. This amendment reflects and

clarifies Social Security Ruling 83–35

and Social Security Ruling 84–25. This

amendment also will clarify the

averaging methodology issue raised by

the court in Conley v. Bowen, 859 F.2d

261 (2d Cir. 1988). These proposed rules

also provide cross-references to

§ 404.1592a in the explanations of the

averaging and unsuccessful work

attempts concepts contained in

§§ 404.1574(c), 404.1574a, and

404.1575(d).

These proposed regulations also

reflect section 9010 of Pub. L. 100–203

which extended, as of January 1, 1988,

the reentitlement period from 15

months to 36 months. During this

extended reentitlement period, the title

II benefits of a disabled individual

whose benefits are stopped because of

substantial gainful activity can be

reinstated without the need to file a new

application if his or her work falls

below the substantial gainful activity

level. These statutory changes are

reflected in proposed amendments to

§§ 404.321, 404.325 and 404.1592a.

Public Law 99–643 made a number of

changes in the way we handle

supplemental security income cases

under title XVI of the Act when a

disabled person, eligible for

supplemental security income benefits,

works. Certain supplemental security

income recipients who work despite

otherwise disabling impairments and

begin to earn amounts that would

ordinarily represent substantial gainful

activity will not have their earnings

considered when determining whether

they continue to be disabled. Pursuant
Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules 12169

to section 4 of Pub. L. 99–643, the trial

work period and the reentitlement

period no longer apply in title XVI

disability cases, and we are accordingly

proposing to delete §§ 416.973(f),

416.976(f)(2), 416.992, 416.992a, and

416.994(b)(3)(v), (b)(5)(i), the first

paragraph of (b)(6)(i), (b)(6)(i)(D), and

(b)(6)(ii) from the regulations and to

amend §§ 416.901(m), 416.991, and

416.1331(a) by removing references to

the trial work period and reentitlement

period. A substantial gainful activity

test is still necessary to establish an

individual’s initial eligibility for SSI

benefits based on disability under title

XVI.

Regulatory Procedures

Paperwork Reduction Act

These regulations contain reporting

requirements in §§ 404.1574(a)(3) and

416.974(a)(3). We would normally seek

approval of these requirements (under

the Paperwork Reduction Act) from the

Office of Management and Budget

(OMB). We are not doing so in this

situation because we already have

clearance from the OMB to collect this

information using form SSA–3033

(OMB No. 0960–0483).

The public reporting burden for this

collection of information is estimated to

average 15 minutes per response. This

includes the time it will take to read the

instructions, gather the necessary facts,

and provide the information. We expect

approximately 12,500 employers to

complete form SSA–3033 annually, and

estimate the total burden to be 3,125

hours. If you have any comments or

suggestions on this estimate, write to the

Social Security Administration, ATTN:

Reports Clearance Officer, 1–A–21

Operations Building, Baltimore,

Maryland 21235, and to the Office of

Management and Budget, Paperwork

Reduction Project (0960–0483),

Washington, DC 20503.

Regulatory Flexibility Act

We certify that these proposed

regulations, if promulgated, will not

have a significant economic impact on

a substantial number of small entities

because they primarily affect

individuals who are applying for or

receiving title II or title XVI benefits

because of disability or blindness.

Executive Order 12866

OMB has reviewed these rules and

determined they do not meet the criteria

for a significant regulatory action under

E.O. 12866.

(Catalog of Federal Domestic Assistance

Program No. 93.802, Social SecurityDisability Insurance; No. 93.807,

Supplemental Security Income.)

List of Subjects in 20 CFR Part 404

Administrative practice and

procedure, Death benefits, Disability

benefits, Old-Age, Survivors and

Disability Insurance.

List of Subjects in 20 CFR Part 416

Administrative practice and

procedure, Aged, blind, disability

benefits, Public assistance programs,

Supplemental security income.

Dated: September 6, 1994.

Shirley S. Chater,

Commissioner of Social Security.

Approved: November 22, 1994.

Donna E. Shalala,

Secretary of Health and Human Services.

Parts 404 and 416 of chapter III of title

20 of the Code of Federal Regulations

are proposed to be amended as follows:

PART 404—FEDERAL OLD-AGE,

SURVIVORS AND DISABILITY

INSURANCE (1950– )

1. The authority citation for subpart D

of Part 404 continues to read as follows:

Authority: Secs. 202, 203(a) and (b), 205(a),

216, 223, 228(a)–(e), and 1102 of the Social

Security Act; 42 U.S.C. 402, 403(a) and (b),

405(a), 416, 423, 428(a)–(e), and 1302.

2. Section 404.321 is amended by

revising paragraph (c)(3) to read as

follows:

§ 404.321 When a period of disability

begins and ends.

* * * * *

(c) * * *

(3) If you perform substantial gainful

activity during the reentitlement period

described in § 404.1592a, the last month

for which you received benefits.

3. Section 404.325 is revised to read

as follows:

§ 404.325 The termination month.

If you do not have a disabling

impairment, your termination month is

the third month following the month in

which your impairment is not disabling

even if it occurs during the trial work

period or the reentitlement period. If

you continue to have a disabling

impairment and complete 9 months of

trial work, your termination month will

be the third month following the earliest

month you perform substantial gainful

activity or are determined able to

perform substantial gainful activity;

however, in no event will the

termination month under these

circumstances be earlier than the first

month after the end of the reentitlement

period described in § 404.1592a.

Example: You complete your trial work

period in December 1988. You are then

working at the substantial gainful activity

level and continue to do so throughout the

36 months following completion of your trial

work period and thereafter. Your termination

month will be January 1992, which is the

37th month—that is, the first month in which

you performed substantial gainful activity

after the 36th month following your trial

work period.

Example: You complete your trial work

period in December 1988 but you are not able

to work at the substantial gainful activity

level until March 1992, 3 months after the

last month of your reentitlement period. Your

termination month will be June 1992—that

is, the third month after the earliest month

you performed substantial gainful activity.

4. The authority citation for subpart P

of Part 404 continues to read as follows:

Authority: Secs. 202, 205(a), (b), and (d)–

(h), 216(i), 221(a) and (i), 222(c), 223, 225,

and 1102 of the Social Security Act; 42

U.S.C. 402, 405(a), (b), and (d)–(h), 416(i),

421(a) and (i), 422(c), 423, 425, and 1302; sec.

505(a) of Pub. L. 96–265, 94 Stat. 473; secs

2(d)(2), 5, 6, and 15 of Pub. L. 98–460, 98

Stat. 1797, 1801, 1802, and 1808; sec. 10103

of Pub. L. 101–239, 103 Stat. 2472.

5. Section 404.1573 is amended by

revising paragraph (c) to read as follows:

§ 404.1573 General information about work

activity.

* * * * *

(c) If your work is done under special

conditions. Even though the work you

are doing is done under special

conditions that take into account your

impairment, such as work done in a

sheltered workshop or as a patient in a

hospital, it may still show that you have

the necessary skills and ability to work

at the substantial gainful activity level.

Also, if you are forced to stop or reduce

your work because of the removal of

special conditions that were related to

your impairment and essential to your

work, we may find that your work does

not show that you are able to do

substantial gainful activity. Examples of

the special conditions that may relate to

your impairment include situations in

which—

(1) You required and received special

assistance from other employees in

performing your work;

(2) You were allowed to work

irregular hours or take frequent rest

periods;

(3) You were provided with special

equipment or were assigned work

especially suited to your impairment;

(4) You were able to work only

because of specially arranged

circumstances, for example, other

persons helped you prepare for or get to

and from your work;

(5) You were permitted to work at a

lower standard of productivity or

efficiency than other employees; or
12170 Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules

(6) You were given the opportunity to

work, despite your impairment, because

of family relationship, past association

with your employer, or your employer’s

concern for your welfare.

* * * * *

6. Section 404.1574 is amended by

redesignating current paragraph (a)(3) as

(a)(6); revising paragraphs (a)(1), (a)(2),

newly designated (a)(6), (b)(1), and

(b)(4) and the heading of paragraph

(b)(6); and adding new paragraphs (a)(3)

through (a)(5), (c), and (d) to read as

follows:

§ 404.1574 Evaluation guides if you are an

employee.

(a) * * *

(1) Your earnings may show you have

done substantial gainful activity. In

evaluating an employee’s work activity

for substantial gainful activity purposes,

our primary consideration is the

earnings that are derived from the work

activity. The amount of your earnings

from work you have done may show

that you have engaged in substantial

gainful activity. Generally, if you

worked for substantial earnings, we will

find that you are able to do substantial

gainful activity. However, the fact that

your earnings were not substantial will

not necessarily show that you are not

able to do substantial gainful activity.

We generally consider work that you are

forced to stop or to reduce below the

substantial gainful activity level after a

short time because of your impairment

to be an unsuccessful work attempt.

Your earnings from an unsuccessful

work attempt will not show that you are

able to do substantial gainful activity.

We use the criteria in paragraph (c) of

this section to determine if the work you

did was an unsuccessful work attempt.

(2) We consider only the amounts you

earn. When we decide whether your

earnings show that you have done

substantial gainful activity, we do not

consider any income that is not directly

related to your productivity. When your

earnings exceed the reasonable value of

the work you perform, we consider only

that part of your pay which you actually

earn. If your earnings are being

subsidized, we do not consider the

amount of the subsidy when we

determine if your earnings show that

you have done substantial gainful

activity. We consider your work to be

subsidized if the true value of your

work, when compared with the same or

similar work done by unimpaired

persons, is less than the actual amount

of earnings paid to you for your work.

For example, when a handicapped

person does simple tasks under close

and continuous supervision, our

determination of whether that person

has done substantial gainful activity

will not be based only on the amount of

the wages paid. We will first determine

whether the person received a subsidy;

that is, we will determine whether the

person was being paid more than the

reasonable value of the actual services

performed. We will then subtract the

value of the subsidy from the person’s

gross earnings to determine the earnings

we will use to determine if he or she has

done substantial gainful activity.

Paragraphs (a)(3), (a)(4), (a)(5), and (a)(6)

of this section explain how we

determine the amounts of subsidies.

(3) Evidence of subsidy from your

employer. We will first ask your

employer to tell us if your wages have

been subsidized and, if so, the amount

of the subsidy. Your employer may set

a specific amount as the reasonable

value of your services. If the wages you

receive exceed the reasonable value of

the actual services you performed, we

will regard the excess as a subsidy

rather than earnings. Any of the

following circumstances may indicate

the existence of a subsidy:

(i) You work in sheltered

employment.

(ii) Childhood disability is involved.

(iii) You have a mental impairment.

(iv) There is a marked discrepancy

between the amount of your pay and the

value of your services.

(v) You receive an unusual degree of

help from others to do your work.

(vi) Your impairment indicates you

would need an unusual degree of help

from others.

(vii) You are involved in a

government-sponsored job training and

employment program.

(4) When your employer does not tell

us the value of your subsidy. If your

earnings are subsidized and your

employer does not set the amount of the

subsidy, or does not adequately explain

how the subsidy was determined, we

will use the following criteria to

determine the amount of your subsidy:

(i) In most instances, we will

determine the amount of your subsidy

by comparing the time, energy, skills,

and responsibility involved in your

services with the time, energy, skills,

and responsibility involved in the

performance of the same or similar work

by unimpaired individuals in your

community. We will estimate the

proportionate value of your services

according to the prevailing pay scale for

your work.

(ii) In other instances, it may be

possible for us to determine the

approximate extent of your subsidy

based upon other indications of your

productivity, such as your need for an

unusual degree of supervision or

assistance in the performance of simple

tasks, the length of time you need to do

simple tasks, or how efficiently you are

able to do simple tasks.

(5) Subsidies in organizations that

hire the handicapped. If you work for an

organization that hires the handicapped

and the organization either operates at

a loss or receives charitable

contributions or government aid, this

does not necessarily establish that your

work is subsidized. Our determination

of whether or not you receive a subsidy,

and the amount of any subsidy you may

receive, will depend upon your

productivity rather than the financial

condition of your employer’s business.

(6) If you are working in a sheltered

or special environment. If you are

working in a sheltered workshop, you

may or may not be earning the amounts

you are being paid. The fact that the

sheltered workshop or similar facility is

operating at a loss or is receiving some

charitable contributions or

governmental aid does not establish that

you are not earning all you are being

paid. Because persons in military

service being treated for severe

impairments usually continue to receive

full pay, we evaluate their work activity

in a therapy program or while on

limited duty by comparing it with

similar work in the civilian work force

or on the basis of reasonable worth of

the work, rather than on the actual

amount of the earnings.

(b) Earnings guidelines.—(1) General.

If you are an employee, we first consider

the criteria in paragraph (a) of this

section and § 404.1576, and then the

guides in paragraphs (b)(2), (3), (4), (5),

and (6) of this section. When we review

your earnings to determine if you have

been performing substantial gainful

activity, we will subtract the value of

any subsidized earnings (see paragraph

(a)(2) of this section) and the reasonable

cost of any impairment-related work

expenses from your gross earnings (see

§ 404.1576). The resulting amount is the

amount we use to determine if you have

done substantial gainful activity. We

will generally average your earnings for

comparison with the earnings

guidelines in paragraphs (b)(2), (3), (4),

and (6) of this section. See § 404.1574a

for our rules on averaging earnings.

(2) * * *

(3) * * *

(4) If you work in a sheltered

workshop. If you work in a sheltered

workshop or a comparable facility

especially set up for severely impaired

persons, we ordinarily will consider

that your earnings from this work show

that you have engaged in substantial

gainful activity if the guides in

paragraph (b)(2) of this section are met.
Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules 12171

Earnings less than those indicated in

paragraph (b)(2) of this section will

ordinarily show that you have not

engaged in substantial gainful activity

without the need to consider the other

information discussed in paragraph

(b)(6) of this section even if those

earnings are more than those indicated

in paragraph (b)(3) of this section.

(5) * * *

(6) Earnings that are not high or low

enough to show whether you engaged in

substantial gainful activity. * * *

(c) The unsuccessful work attempt.—

(1) General. Ordinarily, work you have

done will not show that you are able to

do substantial gainful activity if, after

working for a period of 6 months or less,

you were forced by your impairment to

stop working or to reduce the amount of

work you do so that your earnings from

such work fall below the substantial

gainful activity earnings level in

paragraph (b)(3) of this section and you

meet the conditions described in

paragraphs (c)(2), (3), (4), and (5), of this

section. The unsuccessful work attempt

criteria do not apply in determining

whether payment should be made for

any month(s) during or after the

reentitlement period that occurs after

the month disability has been

determined to have ceased because of

the performance of substantial gainful

activity. The reentitlement period is

explained in § 404.1592a.

(2) Event that must precede an

unsuccessful work attempt. There must

be a significant break in the continuity

of your work before we will consider

you to have begun a work attempt that

later proved unsuccessful. Your work

must have been discontinued or

reduced below the substantial gainful

activity earnings level because of your

impairment or because of the removal of

special conditions that were essential to

the further performance of your work.

We explain what we mean by special

conditions in § 404.1573(c). We will

consider your prior work to be

‘‘discontinued’’ if you were out of work

at least 30 consecutive days. We will

also consider your prior work to be

‘‘discontinued’’ if, because of your

impairment, you were forced to change

to another type of work or another

employer.

(3) If you worked 3 months or less. We

will consider work of 3 months or less

which ended, or was reduced below the

substantial gainful activity earnings

level, because of your impairment or

due to the removal of special conditions

which took into account your

impairment and permitted you to work

to be an unsuccessful work attempt.

(4) If you worked between 3 and 6

months. We will consider work that

lasted longer than 3 months to be an

unsuccessful work attempt if it ended,

or was reduced below the substantial

gainful activity earnings level, within 6

months because of your impairment

and—

(i) You were frequently absent from

work because of your impairment;

(ii) Your work was unsatisfactory

because of your impairment;

(iii) Your work was performed during

a period of temporary remission of your

impairment; or

(iv) Your work was done under

special conditions that were essential to

your performance and these conditions

were removed.

(5) If you worked more than 6 months.

We will not consider work you

performed at the substantial gainful

activity earnings level for more than 6

months to be an unsuccessful work

attempt regardless of why it ended or

was reduced below the substantial

gainful activity earnings level.

(d) Work activity in certain volunteer

programs. If you work as a volunteer in

certain programs administered by the

Federal government under the Domestic

Volunteer Service Act of 1973 or the

Small Business Act, any payments you

receive from these programs will not be

counted as earnings when we determine

whether you are engaging in substantial

gainful activity. These payments may

include a minimal stipend, payments

for supportive services such as housing,

supplies and equipment, an expense

allowance, or reimbursement of out-ofpocket expenses. We will also disregard

the services you perform as a volunteer

in applying any of the substantial

gainful activity tests discussed in

paragraph (b)(6) of this section. This

exclusion from the substantial gainful

activity provisions will apply only if

you are a volunteer in a program

explicitly mentioned in the Domestic

Volunteer Service Act of 1973 or the

Small Business Act. Programs explicitly

mentioned in those Acts include

Volunteers in Service to America,

University Year for ACTION, Special

Volunteer Programs, Retired Senior

Volunteer Program, Foster Grandparent

Program, Service Corps of Retired

Executives, and Active Corps of

Executives. Volunteer work you perform

in other programs or any nonvolunteer

work you may perform is not excluded

under this paragraph. Also, your work

will not be excluded if you work for one

of the specified programs but are not a

volunteer. For civilians in certain

government-sponsored job training and

employment programs, we evaluate the

work activity on a case-by-case basis

under the substantial gainful activity

earnings test. In programs such as these,

subsidies often occur. The value of any

subsidy must be subtracted and the

remainder used to determine if you have

done substantial gainful activity. See

paragraphs (a)(2)–(6) of this section.

7. A new § 404.1574a is added to read

as follows:

§ 404.1574a When and how we will

average your earnings.

(a) If your work as an employee or as

a self-employed person was continuous

without significant change in work

patterns or earnings, and there has been

no change in the substantial gainful

activity earnings levels, your earnings

will be averaged over the entire period

of work requiring evaluation to

determine if you have done substantial

gainful activity. See § 404.1592a for

information on the reentitlement period.

(b) If you work over a period of time

during which the substantial gainful

activity earnings levels change, we will

average your earnings separately for

each period in which a different

substantial gainful activity earnings

level applies.

(c) If there is a significant change in

your work pattern or earnings during

the period of work requiring evaluation,

we will average your earnings over each

separate period of work to determine if

any of your work efforts were

substantial gainful activity.

(d) Earnings will not be averaged in

determining whether payment should

be made for any month(s) during or after

the reentitlement period that occurs

after the month disability has been

determined to have ceased because of

the performance of substantial gainful

activity. See § 404.1592a for information

on the reentitlement period. The

following example illustrates what we

mean by a significant change in the

work pattern of an employee.

Example: Mary Holmes began receiving

disability insurance benefits in March 1986.

In January 1988 she began selling magazines

by telephone solicitation, with minimum

time being expended, for which she received

$125 monthly. In this manner, Mrs. Holmes

used up her trial work period during the

months of January 1988 through September

1988. It was determined, however, that she

had not engaged in substantial gainful

activity during her trial work period. Her

reentitlement period began October 1988. In

December 1988, Mrs. Holmes discontinued

her telephone solicitation work to take a

course in secretarial skills. In January 1990,

she began work as a part-time temporary

secretary in a banking firm. Mrs. Holmes

worked 20 hours a week, without any

subsidy or impairment-related work

expenses, at beginner rates. She earned $285

per month in January 1990 and February

1990. In March 1990 she had increased her

secretarial skills to journeyman level and was

assigned as a part-time private secretary to
12172 Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules

one of the vice-presidents of the banking

firm. Mrs. Holmes’ earnings increased to

$525 per month effective March 1990. It was

determined that she was engaging in

substantial gainful activity in March 1990. A

finding of disability cessation was made

effective March 1990. Earnings for the period

January 1990 and February 1990 were not

averaged with the period beginning March

1990, because a significant change in

earnings and work activity had taken place

and made the two periods unrepresentative

of each other. Thus, the earnings of January

1990 and February 1990 could not be

averaged with those of March 1990 to reduce

March 1990 earnings below the substantial

gainful activity level. After disability has

been determined to have ceased because of

the performance of substantial gainful

activity, her earnings cannot be averaged in

determining whether payment should be

made for any month during or after the

reentitlement period. From March 1990 (the

month of cessation) on, all of Mrs. Holmes’

work activity would then be evaluated on a

month-by-month basis.

8. Section 404.1575 is amended by

revising paragraphs (a) and (c) and

adding a new paragraph (d) to read as

follows:

§ 404.1575 Evaluation guides if you are

self-employed.

(a) If you are a self-employed person.

We will consider your activities and

their value to your business to decide

whether you have engaged in

substantial gainful activity if you are

self-employed. We will not consider

your income alone because the amount

of income you actually receive may

depend upon a number of different

factors, such as capital investment and

profit sharing agreements. We will

generally consider work that you were

forced to stop or reduce below

substantial gainful activity after 6

months or less because of your

impairment as an unsuccessful work

attempt. See paragraph (d) of this

section. We will evaluate your work

activity based on the value of your

services to the business regardless of

whether you receive an immediate

income for your services. We determine

whether you have engaged in

substantial gainful activity by applying

three tests. If you have not engaged in

substantial gainful activity under test

one, tests two and three must be

considered. The tests are as follows:

(1) Test One: You have engaged in

substantial gainful activity if you render

services that are significant to the

operation of the business and receive a

substantial income from the business.

Paragraphs (b) and (c) of this section

explain what we mean by significant

services and substantial income for

purposes of this test.

(2) Test Two: You have engaged in

substantial gainful activity if your work

activity, in terms of factors such as

hours, skills, energy output, efficiency,

duties, and responsibilities, is

comparable to that of unimpaired

individuals in your community who are

in the same or similar businesses as

their means of livelihood.

(3) Test Three: You have engaged in

substantial gainful activity if your work

activity, although not comparable to that

of unimpaired individuals, is clearly

worth the amount shown in

§ 404.1574(b)(2) when considered in

terms of its value to the business, or

when compared to the salary that an

owner would pay to an employee to do

the work you are doing.

(b) * * *

(c) What we mean by substantial

income. Your normal business expenses

are deducted from your gross income to

determine net income. Once net income

is determined, we deduct the reasonable

value of any significant amount of

unpaid help furnished by your spouse,

children, or others. Miscellaneous

duties which ordinarily would not have

commercial value would not be

considered significant. We deduct

impairment-related work expenses that

have not already been deducted in

determining your net income.

Impairment-related work expenses are

explained in § 404.1576. We deduct

unincurred business expenses paid for

you by another individual or agency. An

unincurred business expense occurs

when a sponsoring agency or another

person incurs responsibility for the

payment of certain business expenses,

e.g., rent, utilities, or purchases and

repair of equipment, or provides you

with equipment, stock, or other material

for the operation of your business. We

deduct soil bank payments if they were

included as farm income. That part of

your income remaining after we have

made all applicable deductions

represents the actual value of work

performed. The resulting amount is the

amount we use to determine if you have

done substantial gainful activity. We

will generally average your income for

comparison with the earnings

guidelines in §§ 404.1574(b)(2) and

404.1574(b)(3). See § 404.1574a for our

rules on averaging of earnings. We will

consider this amount to be substantial

if—

(1) It averages more than the amounts

described in § 404.1574(b)(2); or

(2) It averages less than the amounts

described in § 404.1574(b)(2) but it is

either comparable to what it was before

you became severely impaired or is

comparable to that of unimpaired selfemployed persons in your community

who are in the same or a similar

business as their means of livelihood.

(d) The unsuccessful work attempt.—

(1) General. Ordinarily, work you have

done will not show that you are able to

do substantial gainful activity if, after

working for a period of 6 months or less,

you were forced by your impairment to

stop working or to reduce the amount of

work you do so that you are no longer

performing substantial gainful activity

and you meet the conditions described

in paragraphs (d)(2), (3), (4), and (5) of

this section. The unsuccessful work

attempt criteria do not apply in

determining whether payment should

be made for any month(s) during or after

the reentitlement period that occurs

after the month disability has been

determined to have ceased because of

the performance of substantial gainful

activity. The reentitlement period is

explained in § 404.1592a.

(2) Event that must precede an

unsuccessful work attempt. There must

be a significant break in the continuity

of your work before we will consider

you to have begun a work attempt that

later proved unsuccessful. Your work

must have been discontinued or

reduced below substantial gainful

activity because of your impairment or

because of the removal of special

conditions related to the impairment

which permitted you to work. Examples

of such special conditions may include

any significant amount of unpaid help

furnished by your spouse, children, or

others, or unincurred business

expenses, as described in paragraph (c)

of this section, paid for you by another

individual or agency. We will consider

your prior work to be discontinued if

you were out of work at least 30

consecutive days, or if, because of your

impairment, you were forced to change

to another type of work.

(3) If you worked 3 months or less. We

will consider work of 3 months or less

to be an unsuccessful work attempt if it

ended, or was reduced below

substantial gainful activity, because of

your impairment or because of the

removal of special conditions related to

the impairment which permitted you to

work.

(4) If you worked between 3 and 6

months. We will consider work that

lasted longer than 3 months to be an

unsuccessful work attempt if it ended,

or was reduced below substantial

gainful activity, within 6 months

because of your impairment or because

of the removal of special conditions

related to the impairment which

permitted you to work and—

(i) You were frequently unable to

work because of your impairment;
Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules 12173

(ii) Your work was unsatisfactory

because of your impairment;

(iii) Your work was performed during

a period of temporary remission of your

impairment; or

(iv) Your work was done under

special conditions that were essential to

your performance and these conditions

were removed.

(5) If you worked more than 6 months.

We will not consider work you

performed at the substantial gainful

activity level for more than 6 months an

unsuccessful work attempt regardless of

why it ended or was reduced below

substantial gainful activity.

9. Section 404.1584 is amended by

revising paragraph (d) to read as

follows:

§ 404.1584 Evaluation of work activity of

blind people.

* * * * *

(d) Evaluation of earnings. The law

provides a different earnings test for

substantial gainful activity of people

who are blind. We will not consider that

you are able to engage in substantial

gainful activity on the basis of earnings

unless your monthly earnings average

more than $334 in 1978; $375 in 1979;

$417 in 1980; $459 in 1981; $500 in

1982; $550 in 1983; $580 in 1984; $610

in 1985; $650 in 1986; $680 in 1987;

$700 in 1988; $740 in 1989; $780 in

1990; $810 in 1991; $850 in 1992; $880

in 1993; and $930 in 1994. (Sections

404.1574(a)(2), 404.1575(c), and

404.1576 are applicable in determining

the amount of your earnings.)

Thereafter, an increase in the substantial

gainful activity amount will depend on

increases in the cost of living. For work

activity performed in taxable years

before 1978, the earnings considered

enough to show an ability to do

substantial gainful activity are the same

for blind people as for others.

10. Section 404.1592 is amended by

revising the last sentence of paragraph

(b), adding a sentence to paragraph (b),

and revising paragraphs (d) and (e) to

read as follows:

§ 404.1592 The trial work period.

(a) * * *

(b) * * * 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.

Work as a volunteer in the Federal

programs described in § 404.1574(d) is

not considered in determining whether

you have performed services in the trial

work period.

* * * * *

(d) Who is and is not entitled to a trial

work period. (1) You are generally

entitled to a trial work period if you are

receiving disability insurance benefits,

child’s benefits based on disability, or

widow’s or widower’s or surviving

divorced spouse’s benefits based on

disability.

(2) You are not entitled to a trial work

period if—

(i) You are entitled to a period of

disability but not to disability insurance

benefits, child’s benefits based on

disability, or widow’s or widower’s or

surviving divorced spouse’s benefits

based on disability; or

(ii) You perform work demonstrating

the ability to engage in substantial

gainful activity during any required

waiting period for benefits; or

(iii) You perform work demonstrating

the ability to engage in substantial

gainful activity within 12 months of the

onset of the impairment(s) which

prevented you from performing

substantial gainful activity and before

the date of the decision awarding you

disability benefits; or

(iv) You perform work demonstrating

the ability to engage in substantial

gainful activity at any time after the

onset of the impairment(s) which

prevented you from engaging in

substantial gainful activity but before

the month you file your application for

disability benefits.

(e) When the trial work period begins

and ends. The trial work period begins

with the month in which you become

entitled to disability insurance benefits,

to child’s benefits based on disability or

to widow’s, widower’s, or surviving

divorced spouse’s benefits based on

disability. It cannot begin before the

month in which you file your

application for benefits and for widows,

widowers, and surviving divorced

spouses, it cannot begin before

December 1, 1980. It ends with the close

of whichever of the following calendar

months is the earlier:

(1) The 9th month (whether or not the

months have been consecutive) in

which you have performed services if

that 9th month is prior to January 1992;

or

(2) The 9th month (whether or not the

months have been consecutive and

whether or not the previous eight

months of services were prior to January

1992) in which you have performed

services within a rolling 60-month

period if that 9th month is after

December 1991; or

(3) The month in which new

evidence, other than evidence relating

to any work you did during the trial

work period, shows that you are not

disabled, even though you have not

worked a full 9 months. We may find

that your disability has ended at any

time during the trial work period if the

medical or other evidence shows that

you are no longer disabled. See

§ 404.1594 for information on how we

decide whether your disability

continues or ends.

11. Section 404.1592a is amended by

revising paragraphs (a) and (b)(2) to read

as follows:

§ 404.1592a The reentitlement period.

(a) General. The reentitlement period

is an additional period after 9 months of

trial work during which you may

continue to test your ability to work if

you have a disabling impairment. You

will not be paid benefits for any month

after the second month following the

month disability ceased due to

substantial gainful activity in this

period in which you do substantial

gainful activity and you will be paid

benefits for months in which you do not

do substantial gainful activity. (See

§§ 404.316, 404.337, 404.352 and

404.401a.) If anyone else is receiving

monthly benefits based on your earnings

record, that individual will not be paid

benefits for any month for which you

cannot be paid benefits during the

reentitlement period. If your benefits are

stopped because you do substantial

gainful activity they may be started

again without a new application and a

new determination of disability if you

discontinue doing substantial gainful

activity during this period. In

determining, for reentitlement benefit

purposes, whether you do substantial

gainful activity in a month, we consider

only your work in or earnings for that

month; we do not consider the average

amount of your work or earnings over a

period of months. When disability has

been ceased because of the performance

of substantial gainful activity, the

unsuccessful work attempt criteria and

averaging concepts do not apply in

determining whether payments should

be made for any particular month

during or after the reentitlement period

that occurs after the month disability

ceased. The unsuccessful work attempt

criteria and averaging concepts do apply

during and after the reentitlement

period in determining whether

disability has ceased because of the

performance of substantial gainful

activity.

(b) * * *

(1) * * *

(2)(i) The last day of the 15th month

following the end of your trial work

period if you were not entitled to

benefits after December 1987; or

(ii) The last day of the 36th month

following the end of your trial work
12174 Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules

period if you were entitled to benefits

after December 1987 or if the 15-month

period described in paragraph (b)(2)(i)

of this section had not elapsed as of

January 1988. (See §§ 404.316, 404.337,

and 404.352 for when your benefits

end.)

* * * * *

PART 416—SUPPLEMENTAL

SECURITY INCOME FOR THE AGED,

BLIND AND DISABLED

1. The authority citation for subpart I

of part 416 continues to read as follows:

Authority: Secs. 1102, 1614(a), 1619,

1631(a), (c) and (d)(1), and 1633 of the Social

Security Act; 42 U.S.C. 1302, 1382c(a),

1382h, 1383(a), (c) and (d)(1), and 1383b;

secs. 2, 5, 6, and 15 of Pub. L. 98–460, 98

Stat. 1794, 1801, 1802, and 1808.

2. Section 416.901 is amended by

revising paragraph (m) to read as

follows.

§ 416.901 Scope of subpart.

* * * * *

(m) Our rules on when disability or

blindness continues and stops are

contained in §§ 416.986 and 416.988

through 416.998. We explain what your

responsibilities are in telling us of any

events that may cause a change in your

disability or blindness status and when

we will review to see if you are still

disabled. We also explain how we

consider the issue of medical

improvement (and the exceptions to

medical improvement) in determining

whether you are still disabled.

3. Section 416.973 is amended by

revising paragraph (c) and removing

paragraph (f) to read as follows:

§ 416.973 General information about work

activity.

(a) * * *

(b) * * *

(c) If your work is done under special

conditions. Even though the work you

are doing is done under special

conditions that take into account your

impairment, such as work done in a

sheltered workshop or as a patient in a

hospital, it may still show that you have

the necessary skills and ability to work

at the substantial gainful activity level.

Also, if you are forced to stop or reduce

your work because of the removal of

special conditions that were related to

your impairment and essential to your

work, we may find that your work does

not show that you are able to do

substantial gainful activity. Examples of

the special conditions that may relate to

your impairment include situations in

which—

(1) You required and received special

assistance from other employees in

performing your work;

(2) You were allowed to work

irregular hours or take frequent rest

periods;

(3) You were provided with special

equipment or were assigned work

especially suited to your impairment;

(4) You were able to work only

because of specially arranged

circumstances, such as where other

persons helped you prepare for or get to

and from your work;

(5) You were permitted to work at a

lower standard of productivity or

efficiency than other employees; or

(6) You were given the opportunity to

work, despite your impairment, because

of family relationship, past association

with your employer, or your employer’s

concern for your welfare.

* * * * *

4. Section 416.974 is amended by

redesignating current paragraph (a)(3) as

(a)(6); revising paragraphs (a)(1), (a)(2),

newly designated (a)(6), (b)(1), and

(b)(4); and adding new paragraphs (a)(3)

through (a)(5), (c), and (d) to read as

follows:

§ 416.974 Evaluation guides if you are an

employee.

(a) * * *

(1) Your earnings may show you have

done substantial gainful activity. In

evaluating an employee’s work activity

for substantial gainful activity purposes,

our primary consideration is the

earnings that are derived from the work

activity. The amount of your earnings

from work you have done may show

that you have engaged in substantial

gainful activity. Generally, if you

worked for substantial earnings, we will

find that you are able to do substantial

gainful activity. However, the fact that

your earnings were not substantial will

not necessarily show that you are not

able to do substantial gainful activity.

We generally consider work that you are

forced to stop or to reduce below the

substantial gainful activity level after a

short time because of your impairment

to be an unsuccessful work attempt.

Your earnings from an unsuccessful

work attempt will not show that you are

able to do substantial gainful activity.

We use the criteria in paragraph (c) of

this section to determine if the work you

did was an unsuccessful work attempt.

(2) We consider only the amounts you

earn. When we decide whether your

earnings show that you have done

substantial gainful activity, we do not

consider any income that is not directly

related to your productivity. When your

earnings exceed the reasonable value of

the work you perform, we consider only

that part of your pay which you actually

earn. If your earnings are being

subsidized, we do not consider the

amount of the subsidy when we

determine if your earnings show that

you have done substantial gainful

activity. We consider your work to be

subsidized if the true value of your

work, when compared with the same or

similar work done by unimpaired

persons, is less than the actual amount

of earnings paid to you for your work.

For example, when a handicapped

person does simple tasks under close

and continuous supervision, our

determination of whether that person

has done substantial gainful activity

will not be based only on the amount of

the wages paid. We will first determine

whether the person received a subsidy;

that is, we will determine whether the

person was being paid more than the

reasonable value of the actual services

performed. We will then subtract the

value of the subsidy from the person’s

gross earnings to determine the earnings

we will use to determine if he or she has

done substantial gainful activity.

Paragraphs (a)(3), (a)(4), (a)(5), and (a)(6)

of this section explain how we

determine the amounts of subsidies.

(3) Evidence of subsidy from your

employer. We will first ask your

employer to tell us if your wages have

been subsidized and, if so, the amount

of the subsidy. Your employer may set

a specific amount as the reasonable

value of your services. If the wages you

receive exceed the reasonable value of

the actual services you performed, we

will regard the excess as a subsidy

rather than earnings. Any of the

following circumstances may indicate

the existence of a subsidy:

(i) You work in sheltered

employment.

(ii) Childhood disability is involved.

(iii) You have a mental impairment.

(iv) There is a marked discrepancy

between the amount of your pay and the

value of your services.

(v) You receive an unusual degree of

help from others to do your work.

(vi) Your impairment indicates you

would need an unusual degree of help

from others.

(vii) You are involved in a

government-sponsored job training and

employment program.

(4) When your employer does not tell

us the value of your subsidy. If your

earnings are subsidized and your

employer does not set the amount of the

subsidy, or does not adequately explain

how the subsidy was determined, we

will use the following criteria to

determine the amount of your subsidy:

(i) In most instances, we will

determine the amount of your subsidy

by comparing the time, energy, skills,

and responsibility involved in your

services with the time, energy, skills,
Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules 12175

and responsibility involved in the

performance of the same or similar work

by unimpaired individuals in your

community. We will estimate the

proportionate value of your services

according to the prevailing pay scale for

your work.

(ii) In other instances, it may be

possible for us to determine the

approximate extent of your subsidy

based upon other indications of your

productivity, such as your need for an

unusual degree of supervision or

assistance in the performance of simple

tasks, the length of time you need to do

simple tasks, or how efficiently you are

able to do simple tasks.

(5) Subsidies in organizations that

hire the handicapped. If you work for an

organization that hires the handicapped

and the organization either operates at

a loss or receives charitable

contributions or government aid, this

does not necessarily establish that your

work is subsidized. Our determination

of whether or not you receive a subsidy,

and the amount of any subsidy you may

receive, will depend upon your

productivity rather than the financial

condition of your employer’s business.

(6) If you are working in a sheltered

or special environment. If you are

working in a sheltered workshop, you

may or may not be earning the amounts

you are being paid. The fact that the

sheltered workshop or similar facility is

operating at a loss or is receiving some

charitable contributions or

governmental aid does not establish that

you are not earning all you are being

paid. Because persons in military

service being treated for severe

impairments usually continue to receive

full pay, we evaluate their work activity

in a therapy program or while on

limited duty by comparing it with

similar work in the civilian work force

or on the basis of reasonable worth of

the work, rather than on the actual

amount of the earnings.

(b) Earnings guidelines.—(1) General.

If you are an employee, we first consider

the criteria in paragraph (a) of this

section and § 416.976, and then the

guides in paragraphs (b) (2), (3), (4), (5),

and (6) of this section. When we review

your earnings to determine if you have

been performing substantial gainful

activity, we will subtract the value of

any subsidized earnings (see paragraph

(a)(2) of this section) and the reasonable

cost of any impairment-related work

expenses from your gross earnings (see

§ 416.976). The resulting amount is the

amount we use to determine if you have

done substantial gainful activity. We

will generally average your earnings for

comparison with the earnings

guidelines in paragraphs (b) (2), (3), (4),

and (6) of this section. See § 416.974a

for our rules on averaging earnings.

(2) * * *

(3) * * *

(4) If you work in a sheltered

workshop. If you work in a sheltered

workshop or a comparable facility

especially set up for severely impaired

persons, we ordinarily will consider

that your earnings from this work show

that you have engaged in substantial

gainful activity if the guides in

paragraph (b)(2) of this section are met.

Earnings less than those indicated in

paragraph (b)(2) of this section will

ordinarily show that you have not

engaged in substantial gainful activity

without the need to consider the other

information discussed in paragraph

(b)(6) of this section even if those

earnings are more than those indicated

in paragraph (b)(3) of this section.

(5) * * *

(6) * * *

(c) The unsuccessful work attempt.—

(1) General. Ordinarily, work you have

done will not show that you are able to

do substantial gainful activity if, after

working for a period of 6 months or less,

you were forced by your impairment to

stop working or to reduce the amount of

work you do so that your earnings from

such work fall below the substantial

gainful activity earnings level in

paragraph (b)(3) of this section and you

meet the conditions described in

paragraphs (c) (2), (3), (4), and (5), of

this section.

(2) Event that must precede an

unsuccessful work attempt. There must

be a significant break in the continuity

of your work before we will consider

you to have begun a work attempt that

later proved unsuccessful. Your work

must have been discontinued or

reduced below the substantial gainful

activity earnings level because of your

impairment or because of the removal of

special conditions that were essential to

the further performance of your work.

We explain what we mean by special

conditions in § 416.973(c). We will

consider your prior work to be

‘‘discontinued’’ if you were out of work

at least 30 consecutive days. We will

also consider your prior work to be

‘‘discontinued’’ if, because of your

impairment, you were forced to change

to another type of work or another

employer.

(3) If you worked 3 months or less. We

will consider work of 3 months or less

which ended, or was reduced below the

substantial gainful activity earnings

level, because of your impairment or

due to the removal of special conditions

which took into account your

impairment and permitted you to work,

to be an unsuccessful work attempt.

(4) If you worked between 3 and 6

months. We will consider work that

lasted longer than 3 months to be an

unsuccessful work attempt if it ended,

or was reduced below the substantial

gainful activity earnings level, within 6

months because of your impairment

and—

(i) You were frequently absent from

work because of your impairment;

(ii) Your work was unsatisfactory

because of your impairment;

(iii) Your work was performed during

a period of temporary remission of your

impairment; or

(iv) Your work was done under

special conditions that were essential to

your performance and these conditions

were removed.

(5) If you worked more than 6 months.

We will not consider work you

performed at the substantial gainful

activity earnings level for more than 6

months to be an unsuccessful work

attempt regardless of why it ended or

was reduced below the substantial

gainful activity earnings level.

(d) Work activity in certain volunteer

programs. If you work as a volunteer in

certain programs administered by the

Federal government under the Domestic

Volunteer Service Act of 1973 or the

Small Business Act, any payments you

receive from these programs will not be

counted as earnings when we determine

whether you are engaging in substantial

gainful activity. These payments may

include a minimal stipend, payments

for supportive services such as housing,

supplies and equipment, an expense

allowance, or reimbursement of out-ofpocket expenses. We will also disregard

the services you perform as a volunteer

in applying any of the substantial

gainful activity tests discussed in

paragraph (b)(6) of this section. This

exclusion from the substantial gainful

activity provisions will apply only if

you are a volunteer in a program

explicitly mentioned in the Domestic

Volunteer Service Act of 1973 or Small

Business Act. Programs explicitly

mentioned in these Acts include

Volunteers in Service to America,

University Year for ACTION, Special

Volunteer Programs, Retired Senior

Volunteer Program, Foster Grandparent

Program, Service Corps of Retired

Executives, and Active Corps of

Executives. Volunteer work you perform

in other programs or any nonvolunteer

work you may perform is not excluded

under this paragraph. Also, your work

will not be excluded if you work for one

of the specified programs but are not a

volunteer. For civilians in certain

government-sponsored job training and

employment programs, we evaluate the

work activity on a case-by-case basis
12176 Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules

under the substantial gainful activity

earnings test. In programs such as these,

subsidies often occur. The value of any

subsidy must be subtracted and the

remainder used to determine if you have

done substantial gainful activity. See

paragraphs (a)(2)–(6) of this section.

5. A new section 416.974a is added to

read as follows:

§ 416.974a When and how we will average

your earnings.

(a) To determine your initial

eligibility for benefits, we will average

any earnings you make during the

month you file for benefits and any

succeeding months to determine if you

are doing substantial gainful activity. If

your work as an employee or as a selfemployed person was continuous

without significant change in work

patterns or earnings, and there has been

no change in the substantial gainful

activity earnings levels, your earnings

will be averaged over the entire period

of work requiring evaluation to

determine if you have done substantial

gainful activity.

(b) If you work over a period of time

during which the substantial gainful

activity earnings levels change, we will

average your earnings separately for

each period in which a different

substantial gainful activity earnings

level applies.

(c) If there is a significant change in

your work pattern or earnings during

the period of work requiring evaluation,

we will average your earnings over each

separate period of work to determine if

any of your work efforts were

substantial gainful activity.

6. Section 416.975 is amended by

revising paragraphs (a) and (c) and

adding a new paragraph (d) to read as

follows:

§ 416.975 Evaluation guides if you are selfemployed.

(a) If you are a self-employed person.

We will consider your activities and

their value to your business to decide

whether you have engaged in

substantial gainful activity if you are

self-employed. We will not consider

your income alone because the amount

of income you actually receive may

depend upon a number of different

factors, such as capital investment and

profit sharing agreements. We will

generally consider work that you were

forced to stop or reduce to below

substantial gainful activity after 6

months or less because of your

impairment as an unsuccessful work

attempt. See paragraph (d) of this

section. We will evaluate your work

activity based on the value of your

services to the business regardless of

whether you receive an immediate

income for your services. We determine

whether you have engaged in

substantial gainful activity by applying

three tests. If you have not engaged in

substantial gainful activity under test

one, tests two and three must be

considered. The tests are as follows:

(1) Test One: You have engaged in

substantial gainful activity if you render

services that are significant to the

operation of the business and receive a

substantial income from the business.

Paragraphs (b) and (c) of this section

explain what we mean by significant

services and substantial income for

purposes of this test.

(2) Test Two: You have engaged in

substantial gainful activity if your work

activity, in terms of factors such as

hours, skills, energy output, efficiency,

duties, and responsibilities, is

comparable to that of unimpaired

individuals in your community who are

in the same or similar businesses as

their means of livelihood.

(3) Test Three: You have engaged in

substantial gainful activity if your work

activity, although not comparable to that

of unimpaired individuals, is clearly

worth the amount shown in

§ 416.974(b)(2) when considered in

terms of its value to the business, or

when compared to the salary that an

owner would pay to an employee to do

the work you are doing.

(b) * * *

(c) What we mean by substantial

income. Your normal business expenses

are deducted from your gross income to

determine net income. Once net income

is determined, we deduct the reasonable

value of any significant amount of

unpaid help furnished by your spouse,

children, or others. Miscellaneous

duties which ordinarily would not have

commercial value would not be

considered significant. We deduct

impairment-related work expenses that

have not already been deducted in

determining your net income.

Impairment-related work expenses are

explained in § 416.976. We deduct

unincurred business expenses paid for

you by another individual or agency. An

unincurred business expense occurs

when a sponsoring agency or another

person incurs responsibility for the

payment of certain business expenses,

e.g., rent, utilities, or purchases and

repair of equipment, or provides you

with equipment, stock, or other material

for the operation of your business. We

deduct soil bank payments if they were

included as farm income. That part of

your income remaining after we have

made all applicable deductions

represents the actual value of work

performed. The resulting amount is the

amount we use to determine if you have

done substantial gainful activity. We

will generally average your income for

comparison with the earnings

guidelines in §§ 416.974(b)(2) and

416.974(b)(3). See § 416.974a for our

rules on averaging of earnings. We will

consider this amount to be substantial

if—

(1) It averages more than the amounts

described in § 416.974(b)(2); or

(2) It averages less than the amounts

described in § 416.974(b)(2) but it is

either comparable to what it was before

you became severely impaired or is

comparable to that of unimpaired selfemployed persons in your community

who are in the same or a similar

business as their means of livelihood.

(d) The unsuccessful work attempt. (1)

General. Ordinarily, work you have

done will not show that you are able to

do substantial gainful activity if, after

working for a period of 6 months or less,

you were forced by your impairment to

stop working or to reduce the amount of

work you do so that you are no longer

performing substantial gainful activity

and you meet the conditions described

in paragraphs (d) (2), (3), (4), and (5) of

this section.

(2) Event that must precede an

unsuccessful work attempt. There must

be a significant break in the continuity

of your work before we will consider

you to have begun a work attempt that

later proved unsuccessful. Your work

must have been discontinued or

reduced below substantial gainful

activity because of your impairment or

because of the removal of special

conditions related to the impairment

which permitted you to work. Examples

of such special conditions may include

any significant amount of unpaid help

furnished by your spouse, children, or

others, or unincurred business

expenses, as described in paragraph (c)

of this section, paid for you by another

individual or agency. We will consider

your prior work to be discontinued if

you were out of work at least 30

consecutive days, or if, because of your

impairment, you were forced to change

to another type of work.

(3) If you worked 3 months or less. We

will consider work of 3 months or less

to be an unsuccessful work attempt if it

ended, or was reduced below

substantial gainful activity, because of

your impairment or because of the

removal of special conditions related to

the impairment which permitted you to

work.

(4) If you work between 3 and 6

months. We will consider work that

lasted longer than 3 months to be an

unsuccessful work attempt if it ended,

or was reduced below substantial
Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules 12177

gainful activity, within 6 months

because of your impairment or because

of the removal of special conditions

related to the impairment which

permitted you to work and—

(i) You were frequently unable to

work because of your impairment;

(ii) Your work was unsatisfactory

because of your impairment;

(iii) Your work was performed during

a period of temporary remission of your

impairment; or

(iv) Your work was done under

special conditions that were essential to

your performance and these conditions

were removed.

(5) If you worked more than 6 months.

We will not consider work you

performed at the substantial gainful

activity level for more than 6 months an

unsuccessful work attempt regardless of

why it ended or was reduced below

substantial gainful activity.

§ 416.976 [Amended]

7. Section 416.976 is amended by

removing paragraph (f)(2) and by

redesignating paragraphs (f)(3) through

(f)(6) as paragraphs (f)(2) through (f)(5),

respectively.

§ 416.991 [Amended]

8. Section 416.991 is amended and by

removing the parenthetical sentence

immediately preceding the example.

§ 416.992 [Removed and Reserved]

9. Section 416.992 is removed and

reserved.

§ 416.992a [Removed and Reserved]

10. Section 416.992a is removed and

reserved.

11. Section 416.994 is amended by

removing paragraph (b)(3)(v) and

revising paragraphs (b)(5) and (b)(6) to

read as follows:

§ 416.994 How we will decide whether your

disability continues or ends, disabled

adults.

* * * * *

(b) * * *

(5) Evaluation steps. To assure that

disability reviews are carried out in a

uniform manner, that a decision of

continuing disability can be made in the

most expeditious and administratively

efficient way, and that any decisions to

stop disability benefits are made

objectively, neutrally, and are fully

documented, we will follow specific

steps in reviewing the question of

whether your disability continues. Our

review may cease and benefits may be

continued at any point if we determine

there is sufficient evidence to find that

you are still unable to engage in

substantial gainful activity. The steps

are:

(i) Step 1. Do you have an impairment

or combination of impairments which

meets or equals the severity of an

impairment listed in appendix 1 of

subpart P of part 404 of this chapter? If

you do, your disability will be found to

continue.

(ii) Step 2. If you do not, has there

been medical improvement as defined

in paragraph (b)(1)(i) of this section? If

there has been medical improvement as

shown by a decrease in medical

severity, see step 3 in paragraph

(b)(5)(iii) of this section. If there has

been no decrease in medical severity,

there has been no medical

improvement. (See step 4 in paragraph

(b)(5)(iv) of this section.)

(iii) Step 3. If there has been medical

improvement, we must determine

whether it is related to your ability to do

work in accordance with paragraphs

(b)(1)(i) through (b)(1)(iv) of this section;

i.e., whether or not there has been an

increase in the residual functional

capacity based on the impairment(s)

that was present at the time of the most

recent favorable medical determination.

If medical improvement is not related to

your ability to work, see step 4 in

paragraph (b)(5)(iv) of this section. If

medical improvement is related to your

ability to do work, see step 5 in

paragraph (b)(5)(v) of this section.

(iv) Step 4. If we found at step 2 in

paragraph (b)(5)(ii) of this section that

there has been no medical improvement

or if we found at step 3 in paragraph

(b)(5)(iii) of this section that the medical

improvement is not related to your

ability to work, we consider whether

any of the exceptions in paragraphs

(b)(3) and (b)(4) of this section apply. If

none of them apply, your disability will

be found to continue. If one of the first

group of exceptions to medical

improvement applies, see step 5 in

paragraph (b)(5)(v) of this section. If an

exception from the second group of

exceptions to medical improvements

applies, your disability will be found to

have ended. The second group of

exceptions to medical improvement

may be considered at any point in this

process.

(v) Step 5. If medical improvement is

shown to be related to your ability to do

work or if one of the first group of

exceptions to medical improvement

applies, we will determine whether all

your current impairments (in

combination) are severe (see § 416.921).

This determination will consider all

your current impairments and the

impact of the combination of these

impairments on your ability to function.

If the residual functional capacity

assessment in step 3 in paragraph

(b)(5)(iii) of this section shows

significant limitation of your ability to

do basic work activities, see step 6 in

paragraph (b)(5)(vi) of this section.

When the evidence shows that all your

current impairments in combination do

not significantly limit your physical or

mental abilities to do basic work

activities, these impairments will not be

considered severe in nature. If so, you

will no longer be considered to be

disabled.

(vi) Step 6. If your impairment(s) is

severe, we will assess your current

ability to engage in substantial gainful

activity in accordance with § 416.961.

That is, we will assess your residual

functional capacity based on all your

current impairments and consider

whether you can still do work you have

done in the past. If you can do such

work, disability will be found to have

ended.

(vii) Step 7. If you are not able to do

work you have done in the past, we will

consider one final step. Given the

residual functional capacity assessment

and considering your age, education,

and past work experience, can you do

other work? If you can, disability will be

found to have ended. If you cannot,

disability will be found to continue.

(6) The month in which we will find

you are no longer disabled. If the

evidence shows that you are no longer

disabled, we will find that your

disability ended in the following

month—

(i) The month the evidence shows that

you are no longer disabled under the

rules set out in this section, and you

were disabled only for a specified

period of time in the past;

(ii) The month the evidence shows

that you are no longer disabled under

the rules set out in this section, but not

earlier than the month in which we mail

you a notice saying that the information

we have shows that you are not

disabled;

(iii) The month in which you return

to full-time work, with no significant

medical restrictions and acknowledge

that medical improvement has occurred,

and we expected your impairment(s) to

improve (see § 416.991);

(iv) The first month in which you fail

without good cause to follow prescribed

treatment, when the rule set out in

paragraph (b)(4)(iv) of this section

applies;

(v) The first month in which you were

told by your physician that you could

return to work provided there is no

substantial conflict between your

physician’s and your statements

regarding your awareness of your

capacity for work and the earlier date is

supported by substantial evidence; or
12178 Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules

(vi) The first month in which you

failed without good cause to do what we

asked, when the rule set out in

paragraph (b)(4)(ii) of this section

applies.

* * * * *

12. The authority citation for Subpart

M of Part 416 continues to read as

follows:

Authority: Secs. 1102, 1611–1615, 1619

and 1631 of the Social Security Act; 42 USC

1302, 1382–1382d, 1382h, 1383.

13. Section 416.1331 is amended by

revising paragraph (a) to read as follows:

§ 416.1331 Termination of your disability

or blindness payments.

(a) General. The last month for which

we can pay you benefits based on

disability is the second month after the

first month in which you are

determined to no longer have a

disabling impairment (described in

§ 416.911). (See § 416.1338 for an

exception to this rule if you are

participating in an appropriate

vocational rehabilitation program, and

§ 416.261 for an explanation of special

benefits to which you may be entitled.)

The last month for which we can pay

you benefits based on blindness is the

second month after the month in which

your blindness ends (see § 416.986 for

when blindness ends). You must meet

the income, resources, and other

eligibility requirements to receive any of

the benefits described in this paragraph.

We will also stop payment of your

benefits if you have not cooperated with

us in getting information about your

disability or blindness.

* * * * *

[FR Doc. 95–5171 Filed 3–3–95; 8:45 am]

BILLING CODE 4190–29–P

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 117

[CGD05–94–092]

Drawbridge Operation Regulations;

New Jersey Intracoastal Waterway,

Beach Thorofare, NJ

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

SUMMARY: At the request of the National

Railroad Passenger Corporation

(AMTRAK), the Coast Guard is

considering a change to the regulations

governing operation of the AMTRAK/

New Jersey Transit Rail Operation

(NJTRO) drawbridge across the Beach

Thorofare, at New Jersey Intracoastal

Waterway, mile 68.9, at Atlantic City,

New Jersey, by permitting the bridge to

be operated remotely from AMTRAK’s

Philadelphia office. This proposal is

being made in an effort to combine

bridge tender and dispatcher positions,

enhance rail safety and operation, and

reduce operating costs. This action

should relieve AMTRAK of the burden

of having to man the bridge constantly

to open the draw, and should still

provide for the reasonable needs of

navigation.

DATES: Comments must be received on

or before June 5, 1995.

ADDRESSES: Comments may be mailed to

Commander (ob), Fifth Coast Guard

District, c/o Commander (obr), First

Coast Guard District, Bldg. 135A,

Governors Island, New York 10004–

5073.

Any comments received will become

part of this docket and will be available

for inspection and copying by

appointment at Bldg. 135A, Governors

Island, New York 10004–5073. Normal

office hours are between 7 a.m. and 3:30

p.m., Monday through Fridays, except

Federal holidays. Comments may also

be hand-delivered to this address.

FOR FURTHER INFORMATION CONTACT:

Gary Kassaf, Bridge Administrator—NY,

Fifth Coast Guard District, (212) 668–

7069, 668–7021, or 668–7165.

SUPPLEMENTARY INFORMATION:

Request for Comments

The Coast Guard encourages

interested persons to participate in this

rulemaking by submitting written views,

comments, data, or arguments. Persons

submitting comments should include

their names and addresses, identify this

rulemaking (CGD05–94–092), and the

specific section of this proposal to

which each comment applies, and give

reasons for each comment. The Coast

Guard requests that all comments and

attachments be submitted in an

unbound format suitable for copying

and electronic filing. If not practical, a

second copy of any bound material is

requested. Persons desiring

acknowledgment that their comments

have been received should enclose a

stamped, self-addressed postcard or

envelope.

The Coast Guard will consider all

comments received during the comment

period. It may change this proposal in

view of the comments received.

The Coast Guard plans no public

hearing. Persons may request a public

hearing by writing to the Commander

(ob) at the address under ADDRESSES.

The request should include reasons why

a hearing would be beneficial. If it

determines that the opportunity for oral

presentations will aid this rulemaking,

the Coast Guard will hold a public

hearing at a time and place to be

announced by a later notice in the

Federal Register.

Drafting Information

The drafters of this notice are Mr. J.

Arca, Fifth Coast Guard District, Bridge

Branch—NY, Project Officer, and LCDR

C.A. Abel, Fifth Coast Guard District

Legal Office, Project Attorney.

Background and Purpose

A permit was issued by the Coast

Guard on December 20, 1988, to replace

and slightly raise the superstructure of

the Beach Thorofare bridge. The new

drawbridge provides a vertical clearance

of 4 feet at mean high water and 9 feet

at mean low water when in the closed

position. Prior to its rehabilitation in

1988, the old bridge was left in the open

position and unused for 5 to 10 years.

However, the regulations governing

operation of this bridge require that the

bridge open on signal from 11 p.m. to

6 a.m. From 6 a.m. to 11 p.m., the draw

is required to open on signal from 20

minutes to 30 minutes after each hour

and remain open for all waiting vessels.

As a result of the rehabilitation and

replacement work, the bridge now

operates according to the published

regulations, and AMTRAK seeks to

operate the bridge remotely from its

Philadelphia office.

The Beach Thorofare section of the

New Jersey Intracoastal Waterway is

used primarily by recreational power

boats ranging in length from eighteen

(18) to thirty-eight (38) feet. The bridge

is required to open for vessel traffic

infrequently during the winter months.

The number of openings increases

during the normal season boating

season. However, the number of

openings is not excessive. During the

period from February 1994 through June

1994, drawlogs for the Beach Thorofare

Bridge show the bridge averaged 1

opening per day in February; 1 or 2

openings per day in March; 2 openings

per day in April; 6 openings per day in

May; and 7 openings per day in June.

During the same 5 month period, data

provided by AMTRAK shows the

number of trains per month crossing the

bridge in both directions remained fairly

constant, averaging between 900 and

1000 trains per month. The vast

majority of these trains are passenger/

shuttle type trains transporting persons

wishing to visit Atlantic City, New

Jersey. Train traffic across the bridge is

proportionately much heavier than

waterway traffic requiring openings of

the bridge. Because of the relatively few

requests for bridge openings, AMTRAK