[Federal Register Volume 64, Number 235 (Wednesday, December 8, 1999)]
[Proposed Rules]
[Pages 68647-68649]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31791]
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RAILROAD RETIREMENT BOARD
20 CFR Part 222
RIN 3220-AB40
Family Relationships
AGENCY: Railroad Retirement Board.
ACTION: Proposed rule.
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SUMMARY: The Railroad Retirement Board (Board) proposes to amend its
regulations on determining whether a natural child has inheritance
rights under appropriate state law and therefore may be entitled to
railroad retirement benefits as the child of an insured employee. The
Board also proposes to clarify its regulation regarding status as a
legally adopted child of an insured employee. Such revisions are
necessary because of a change in the regulations of the Social Security
Administration, which became effective November 27, 1998.
DATES: Comments must be received on or before February 7, 2000.
ADDRESSES: Comments should be addressed to the Secretary to the Board,
Railroad Retirement Board, 844 North Rush Street, Chicago, Illinois
60611-2092.
FOR FURTHER INFORMATION CONTACT: Thomas W. Sadler, Senior Attorney,
(312) 751-4513, TDD (312) 751-4701.
SUPPLEMENTARY INFORMATION: Section 2(d)(4) of the Railroad Retirement
Act (RRA) references section 216(h) of the Social Security Act for
purposes of determining whether an individual is the child of the
insured employee for entitlement to a surviving child's annuity. In
addition, the Board must look to the Social Security Act to determine
the status of a child for increasing a disability annuitant's annuity
under the social security overall minimum provided in section 3(f)(3)
of the RRA. See part 229 of this chapter. Section 216(h)(2)(A) of the
Social Security Act provides that the Social Security Administration
(SSA) looks to the law of the state in which the wage earner was
domiciled regarding the devolution of intestate personal property to
determine who would be a child for inheritance purposes.
The SSA has announced final regulations which revise its procedures
[[Page 68648]]
for determining whether a child has inheritance rights under the
appropriate state law and, thus, may be entitled to social security
benefits as the child of an insured worker (63 FR 57590, October 28,
1998). Specifically, those rules have been revised to explain which
state law will be applied, how SSA will apply state law requirements on
time limits for determining inheritance rights, and how it will apply
state law requirements for a court determination of paternity. The
current rule on determining an applicant's status as a legally adopted
child of an insured individual is also clarified. As a consequence, the
Board must amend part 222 of its regulations, which deals with
determining family relationships, to conform to SSA's new regulations.
The Board proposes to revise Sec. 222.32 to provide that the status
of child will be determined by applying the state inheritance law of
the employee's domicile that is in effect when the claim for benefits
is adjudicated. If the child does not have inheritance rights under
that version of state law, the state law that was in effect when the
insured died will be examined to determine if the status of child is
met at that time.
Many state laws impose time limits within which someone must act to
establish paternity for purposes of intestate succession in order to
ensure the orderly administration of estates. Proposed Sec. 222.32
makes it clear that the Board will disregard these time limits since
the purpose served by the limits is not relevant to the adjudication of
benefits under the RRA. If the applicable inheritance law requires a
formal determination of paternity to establish the status of child,
proposed Sec. 222.32 provides that the Board will not require such a
formal determination, but will rather make its own determination of
paternity based upon the requirements of state law.
A ``child'' under the RRA includes an adopted child. The proposed
amendment to Sec. 222.33 clarifies that in determining whether an
individual is the legally adopted child of the employee, the Board will
apply the adoption laws, rather than the inheritance laws, of the state
or foreign country where the adoption took place.
The Board, with the concurrence of the Office of Management and
Budget, has determined that this is not a significant regulatory action
for purposes of Executive Order 12866. Therefore, no regulatory
analysis is required. There are no information collections associated
with this rule.
List of Subjects in 20 CFR Part 222
Railroad employees, Railroad retirement.
For the reasons set out in the preamble, the Railroad Retirement
Board proposes to amend title 20, chapter II of the Code of Federal
Regulations as follows:
PART 222--FAMILY RELATIONSHIPS
1. The authority citation for part 222 continues to read as
follows:
Authority: 45 U.S.C. 231f.
2. Section 222.31 is revised to read as follows:
Sec. 222.31 Relationship as child for annuity and lump-sum payment
purposes.
(a) Annuity claimant. When there are claimants under paragraph
(a)(1), (a)(2), or (a)(3) of Sec. 222.30, a person will be considered
the child of the employee when that person is--
(1) The natural or legally adopted child of the employee (see
Sec. 222.33); or
(2) The stepchild of the employee; or
(3) The grandchild or step-grandchild of the employee or spouse; or
(4) The equitably adopted child of the employee.
(b) Lump-sum payment claimant. A claimant for a lump-sum payment
must be one of the following in order to be considered the child of the
employee:
(1) The natural child of the employee;
(2) A child legally adopted by the employee (this does not include
any child adopted by the employee's widow or widower after the
employee's death); or
(3) The equitably adopted child of the employee. For procedures on
how a determination of the person's relationship to the employee is
made, see Secs. 222.32-222.33.
3. Section 222.32 is revised to read as follows:
Sec. 222.32 Relationship as a natural child.
A claimant will be considered the natural child of the employee for
both annuity and lump-sum payment purposes if one of the following sets
of conditions is met:
(a) Under relevant state inheritance law, the claimant could
inherit a share of the employee's personal estate as the employee's
natural child if the employee were to die without leaving a will as
described in paragraph (e) of this section;
(b) The claimant is the employee's natural son or daughter, and the
employee and the claimant's mother or father went through a marriage
ceremony which would have been valid except for a legal impediment;
(c) The claimant's natural mother or father has not married the
employee, but--
(1) The employee has acknowledged in writing that the claimant is
his or her son or daughter; or
(2) A court has decreed that the employee is the mother or father
of the claimant; or
(3) A court has ordered the employee to contribute to the
claimant's support because the claimant is the employee's son or
daughter; and,
(4) Such acknowledgment, court decree, or court order was made not
less than one year before the employee became entitled to an annuity,
or in the case of a disability annuitant prior to his or her most
recent period of disability, or in case the employee is deceased, prior
to his or her death. The written acknowledgment, court decree, or court
order will be considered to have occurred on the first day of the month
in which it actually occurred.
(d) The claimant's natural mother or father has not married the
employee, but--
(1) The claimant has submitted evidence acceptable in the judgment
of the Board, other than that discussed in paragraph (c) of this
section, that the employee is his or her natural mother or father; and
(2) The employee was living with the claimant or contributing to
the claimant's support, as discussed in Secs. 222.58 and 222.42 of this
part, when--
(i) The spouse applied for an annuity based on having the
employee's child in care; or
(ii) The employee's annuity could have been increased under the
social security overall minimum provision; or
(iii) The employee died, if the claimant is applying for a child's
annuity or lump-sum payment.
(e) Use of state laws. (1) General. To determine whether a claimant
is the natural child of the employee, the state inheritance laws
regarding whether the claimant could inherit a child's share of the
employee's personal property if he or she were to die intestate will
apply. If such laws would permit the claimant to inherit the employee's
personal property, the claimant will be considered the child of the
employee. The state inheritance laws where the employee was domiciled
when he or she died will apply. If the employee's domicile was not in
one of the 50 states, the Commonwealth of Puerto Rico, the Virgin
Islands, Guam, American Samoa, or the Northern Mariana Islands, the
laws of the District of Columbia will apply.
[[Page 68649]]
(2) Standards. The Board will not apply any state inheritance law
requirement that an action to establish paternity must have been
commenced within a specific time period, measured from the employee's
death or the child's birth, or that an action to establish paternity
must have been commenced or completed before the employee's death. If
state laws on inheritance require a court to determine paternity, the
Board will not require such a determination, but the Board will decide
paternity using the standard of proof that the state court would apply
as the basis for making such a determination.
(3) Employee is living. If the employee is living, the Board will
apply the state law where the employee is domiciled which was in effect
when the annuity may first be increased under the social security
overall minimum (see part 229 of this chapter). If under a version of
state law in effect at that time, a person does not qualify as a child
of the employee, the Board will look to all versions of state law in
effect from when the employee's annuity may first have been increased
until the Board makes a final decision, and will apply the version of
state law most favorable to the employee.
(4) Employee is deceased. The Board will apply the state law where
the employee was domiciled when he or she died. The Board will apply
the version of state law in effect at the time of the final decision on
the application for benefits. If under that version of state law the
claimant does not qualify as the child of the employee, the Board will
apply the state law in effect when the employee died, or any version of
state law in effect from the month of potential entitlement to benefits
until a final determination on the application. The Board will apply
the version most beneficial to the claimant. The following rules
determine the law in effect as of the employee's death:
(i) Any law enacted after the employee's death, if that law would
have retroactive application to the employee's date of death, will
apply; or
(ii) Any law that supersedes a law declared unconstitutional, that
was considered constitutional on the employee's date of death, will
apply.
4. A new paragraph (c) is added to Sec. 222.33 to read as follows:
Sec. 222.33 Relationship resulting from legal adoption.
* * * * *
(c) The adoption laws of the state or foreign country where the
adoption took place, not the state inheritance laws, will determine
whether the claimant is the employee's adopted child.
Dated: November 29, 1999.
By Authority of the Board.
Beatrice Ezerski,
Secretary to the Board.
[FR Doc. 99-31791 Filed 12-7-99; 8:45 am]
BILLING CODE 7905-01-P
