[Federal Register Volume 75, Number 172 (Tuesday, September 7, 2010)]
[Rules and Regulations]
[Pages 54285-54287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-22179]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Part 416

[Docket No. SSA-2009-0017]
RIN 0960-AD78


Improvements to the Supplemental Security Income Program--Heroes 
Earnings Assistance and Relief Tax Act of 2008 (HEART Act)

AGENCY: Social Security Administration.

ACTION: Final rule.

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SUMMARY: We are revising our regulations to incorporate improvements to 
the Supplemental Security Income (SSI) program made by the HEART Act. 
The HEART Act changes the way we treat certain cash payments to members 
of the uniformed services and veterans and the way we treat cash and 
in-kind payments to AmeriCorps volunteers. In addition, we are making a 
technical change to our rules to reflect the correct section of the 
Internal Revenue Code.

DATES: These final rules are effective September 7, 2010.

FOR FURTHER INFORMATION CONTACT: Eric Skidmore, Office of Income 
Security Programs, Social Security Administration, 6401 Security 
Boulevard, Baltimore, MD 21235-6401, (410) 597-1833. For information on 
eligibility or filing for benefits, call our national toll-free number, 
1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, 
Social Security Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION:

Electronic Version

    The electronic file of this document is available on the date of 
publication in the Federal Register at http://www.gpoaccess.gov/fr/index.html.

Background

    We are revising our regulations to incorporate changes to the SSI 
program made by sections 201-203 of the HEART Act, Public Law 110-245. 
The HEART Act amended the SSI program with respect to SSI benefits 
payable on or after September 1, 2008 by:
    <bullet> Treating certain cash payments to members of the uniformed 
services as earned income, generally providing a higher SSI benefit 
(section 201(a) of the HEART Act);
    <bullet> Excluding from countable income and resources certain 
annuity payments paid by a State (section 202 of the HEART Act); and,
    <bullet> Excluding any cash or in-kind benefit provided by 
AmeriCorps State and National and AmeriCorps National Civilian 
Community Corps (NCCC) from countable income for SSI eligibility and 
benefit determinations (section 203 of the HEART Act).
    The primary goal of the SSI program is to ensure a minimum level of 
income to persons who are aged 65 or older, blind, or disabled and who 
have limited income and resources. The law provides that SSI payments 
can be made only to persons who have income and resources below 
specified amounts. Therefore, income and resources are major factors in 
deciding SSI eligibility and the amount of any SSI payments.
    The HEART Act changes the way we apply our earned income, unearned 
income, and resource exclusion rules to uniformed services personnel, 
veterans and their spouses, and AmeriCorps participants. Under the 
HEART Act, some payments that we previously counted as unearned income 
now count as earned income, and some payments are excluded altogether 
for purposes of SSI eligibility and benefit determinations. Since the 
changes made by the HEART Act were effective with respect to SSI 
benefits payable beginning on or after September 1, 2008, we have 
already updated our operational instructions. We also need to update 
our rules in order to reflect these statutory changes.

Explanation of Changes

    We are amending sections 416.1110, 416.1112, 416.1124, 416.1130(b), 
and 416.1210 of our rules to reflect the changes mandated by sections 
201, 202, and 203 of the HEART Act. In addition, we are making a 
technical change to

[[Page 54286]]

section 416.1110(c) to reflect the correct section of the Internal 
Revenue Code.

Uniformed Services Special Pay and Allowances

    Before the HEART Act, we treated some non-wage cash payments to 
uniformed service members, i.e., the military housing allowance paid to 
uniformed service members who live in completely private housing, as 
unearned income for SSI purposes. We are revising section 416.1110 
(What is earned income.) to reflect section 201 of the HEART Act and 
treat most cash payments to uniformed service members, including the 
military housing allowance for completely private housing, as earned 
income.
    The HEART Act does not change, for SSI eligibility and benefit 
determinations, the way we treat:
    <bullet> On-base housing and privatized military housing 
allowances. We count these as in-kind support and maintenance (ISM). 
Military service members receive a basic allowance to cover housing 
costs in on-base housing, privatized military housing, or completely 
private housing. Privatized military housing is developed and managed 
by private companies under agreement with the military to provide 
housing for service members, whereas completely private housing is not.
    <bullet> Combat-related military pay. We exclude this pay for an 
SSI recipient from countable income, and we exclude from deeming 
additional types of combat-related pay beyond special pay. 37 U.S.C. 
310; 20 CFR 416.1124(c)(19) and 416.1161(a)(28). We exclude from a 
spouse's or child's deemed income any additional pay that members of 
the uniformed services received because they were deployed to or served 
in a combat zone.

State Annuities for Blind, Aged, or Disabled Veterans

    Before the HEART Act, we counted State annuity payments as income 
in the month received, and as a resource if retained into the following 
month. We are revising sections 416.1124 (Unearned income we do not 
count) and 416.1210 (Exclusions from resources; general) to reflect 
section 202 of the HEART Act and exclude, for SSI eligibility and 
benefit determinations, annuity payments that a State pays to a person 
(or his or her spouse) because the State has determined that the person 
is:
    <bullet> A veteran; and
    <bullet> Blind, disabled, or aged.

Under section 202 of the HEART Act, we exclude these payments from 
income for the month received and from resources beginning with the 
month after the month received.

AmeriCorps State and National and AmeriCorps NCCC Payments

    Prior to the HEART Act, we treated cash or in-kind payments from 
the AmeriCorps State and National and AmeriCorps NCCC programs as 
countable income. We are revising sections 416.1112 (Earned income we 
do not count) and 416.1124 (Unearned income we do not count) to reflect 
section 203 of the HEART Act. For SSI eligibility and benefit 
determinations, we will exclude from countable income any cash or in-
kind payments to program participants or on the AmeriCorps participants 
behalf. Such payments may include, but are not limited to: Food and 
shelter, stipends, living allowance payments, clothing allowances, 
educational awards, and payments in lieu of educational awards.

Technical Section Change

    We are also updating a citation in 20 CFR 416.1110(c), which 
currently cites ``section 43 of the Internal Revenue Code of 1954, as 
amended'' as authority for the earned income credit. We are updating 
that citation to refer to section 32 of the Internal Revenue Code of 
1986, as amended (26 U.S.C. 32). This change is technical in nature and 
does not have any substantive impact on our policies or procedures.

Regulatory Procedures

    We follow the Administrative Procedure Act (APA) rulemaking 
procedures in 5 U.S.C. 553 when developing our regulations. The APA 
provides exceptions to its prior notice and public comment procedures 
when an agency finds that there is good cause for dispensing with such 
procedures because they are impracticable, unnecessary, or contrary to 
the public interest.
    In the case of these rules, we have determined that, under 5 U.S.C. 
553(b)(B), good cause exists for dispensing with the prior notice and 
public comment procedures for the changes we are making because all of 
these changes are required by the HEART Act. The statutory changes made 
by the HEART Act are self-implementing provisions that do not give us 
any discretion in implementing them. The statutory changes were 
effective with respect to SSI benefits payable on or after September 1, 
2008, and we have been following these provisions in accordance with 
our operational instructions since they became effective. Therefore, we 
have determined that notice and opportunity for comment prior to making 
these changes is unnecessary.
    In addition, we find good cause for dispensing with the 30-day 
delay in the effective date of a substantive rule, provided for by 5 
U.S.C. 553(d). As explained above, we are revising our title XVI rules 
to reflect legislative provisions that are already in effect and that 
we have been applying since they became effective. Without these 
changes, our rules will not reflect current law or our operating policy 
and procedures, and thus may mislead the public. Therefore, we find 
that it is in the public interest to make these rules effective upon 
publication.

Executive Order 12866

    We have consulted with the Office of Management and Budget (OMB) 
and determined that these final rules do not meet the criteria for a 
significant regulatory action under Executive Order 12866 and were not 
subject to OMB review.

Regulatory Flexibility Act

    We certify that these final rules will not have a significant 
economic impact on a substantial number of small entities because they 
only affect individuals. Therefore, a regulatory flexibility analysis 
is not required under the Regulatory Flexibility Act, as amended.

Paperwork Reduction Act

    These rules do not create any new or affect any existing 
collections and, therefore, do not require Office of Management and 
Budget approval under the Paperwork Reduction Act.

(Catalog of Federal Domestic Assistance Program No. 96.006, 
Supplemental Security Income.)

List of Subjects in 20 CFR Part 416

    Administrative practice and procedure; Reporting and recordkeeping 
requirements; Supplemental Security Income (SSI).

    Dated: August 27, 2010.
Michael J. Astrue,
Commissioner of Social Security.

0
For the reasons stated in the preamble, we are amending subparts K and 
L of chapter III of title 20 of the Code of Federal Regulations as set 
forth below:

PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND 
DISABLED.

Subpart K--[Amended]

0
1. The authority citation for subpart K of part 416 continues to read 
as follows:

    Authority: Secs. 702(a)(5), 1602, 1611, 1612, 1613, 1614(f), 
1621, 1631, and 1633 of

[[Page 54287]]

the Social Security Act (42 U.S.C. 902(a)(5), 1381a, 1382, 1382a, 
1382b, 1382c(f), 1382j, 1383, and 1383b); sec 211, Pub. L. 93-66, 87 
Stat. 154 (42 U.S.C. 1382 note).


0
2. In Sec.   416.1110, revise the section heading, paragraph (a) and 
the first sentence of paragraph (c) to read as follows:


Sec.  416.1110  What is earned income.

* * * * *
    (a) Wages--(1) Wages paid in cash--general. Wages are what you 
receive (before any deductions) for working as someone else's employee. 
Wages are the same for SSI purposes as for the social security 
retirement program's earnings test. (See Sec.  404.429(c) of this 
chapter.) Wages include salaries, commissions, bonuses, severance pay, 
and any other special payments received because of your employment.
    (2) Wages paid in cash to uniformed service members. Wages paid in 
cash to uniformed service members include basic pay, some types of 
special pay, and some types of allowances. Allowances for on-base 
housing or privatized military housing are unearned income in the form 
of in-kind support and maintenance. Cash allowances paid to uniformed 
service members for private housing are wages.
    (3) Wages paid in kind. Wages may also include the value of food, 
clothing, shelter, or other items provided instead of cash. We refer to 
this type of income as in-kind earned income. However, if you are a 
domestic or agricultural worker, the law requires us to treat your in-
kind pay as unearned income.
* * * * *
    (c) * * * Refunds on account of earned income credits are payments 
made to you under the provisions of section 32 of the Internal Revenue 
Code of 1986, as amended. * * *
* * * * *

0
3. Amend Sec.  416.1112(c) as follows:
0
a. Remove the word ``and'' at the end of paragraph (c)(8);
0
b. Remove the period at the end of paragraph (c)(9) and add ``; and'' 
in its place;
0
c. Add paragraph (c)(10) to read as follows:


Sec.  416.1112  Earned income we do not count.

* * * * *
    (c) * * *
    (10) Payments made to participants in AmeriCorps State and National 
and AmeriCorps National Civilian Community Corps (NCCC). Payments to 
participants in AmeriCorps State and National and AmeriCorps NCCC may 
be made in cash or in-kind and may be made directly to the AmeriCorps 
participant or on the AmeriCorps participant's behalf. These payments 
include, but are not limited to: Living allowance payments, stipends, 
educational awards, and payments in lieu of educational awards.

0
4. Amend Sec.  416.1124 as follows:
0
a. Remove the word ``and'' at the end of paragraph (c)(21);
0
b. Remove the period from the end of paragraph (c)(22) and add ``; 
and'' in its place; and
0
c. Add new paragraphs (c)(23) and (c)(24) to read as follows:


Sec.  416.1124  Unearned income we do not count.

* * * * *
    (c) * * *
    (23) AmeriCorps State and National and AmeriCorps National Civilian 
Community Corps cash or in-kind payments to AmeriCorps participants or 
on AmeriCorps participants' behalf. These include, but are not limited 
to: Food and shelter, and clothing allowances;
    (24) Any annuity paid by a State to a person (or his or her spouse) 
based on the State's determination that the person is:
    (i) A veteran (as defined in 38 U.S.C. 101); and
    (ii) Blind, disabled, or aged.

0
5. Amend Sec.  416.1130 by adding the following sentence to the end of 
paragraph (b) to read as follows:


Sec.  416.1130  Introduction.

* * * * *
    (b) How we define in-kind support and maintenance. * * * In 
addition, cash payments to uniformed service members as allowances for 
on-base housing or privatized military housing are in-kind support and 
maintenance.
* * * * *

Subpart L--[Amended]

0
6. The authority citation for subpart L of part 416 continues to read 
as follows:

    Authority: Secs. 702(a)(5), 1602, 1611, 1612, 1613, 1614(f), 
1621, 1631, and 1633 of the Social Security Act (42 U.S.C. 
902(a)(5), 1381a, 1382, 1382a, 1382b, 1382c(f), 1382j, 1383, and 
1383b); sec 211, Pub. L. 93-66, 87 Stat. 154 (42 U.S.C. 1382 note).


0
7. Amend Sec.  416.1210 as follows:
0
a. Remove the word ``and'' at the end of paragraph (u);
0
b. Remove the period from the end of paragraph (v) and add ``; and'' in 
its place; and
0
c. Add paragraph (w) to read as follows:


Sec.  416.1210  Exclusions from resources; general.

* * * * *
    (w) Any annuity paid by a State to a person (or his or her spouse) 
based on the State's determination that the person is:
    (1) A veteran (as defined in 38 U.S.C. 101); and
    (2) Blind, disabled, or aged.

[FR Doc. 2010-22179 Filed 9-3-10; 8:45 am]
BILLING CODE 4191-02-P