[Federal Register Volume 62, Number 168 (Friday, August 29, 1997)]
[Rules and Regulations]
[Pages 45712-45714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23080]
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RAILROAD RETIREMENT BOARD
20 CFR Part 261
RIN 3220-AB15
Finality of Decisions Regarding Railroad Retirement Annuities
AGENCY: Railroad Retirement Board.
ACTION: Final rule.
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SUMMARY: The Railroad Retirement Board (Board) hereby adopts
regulations pertaining to the finality of decisions under the Railroad
Retirement Act of 1974 (Act).
EFFECTIVE DATE: This rule will be effective September 29, 1997.
ADDRESSES: Secretary to the Board, Railroad Retirement Board, 844 North
Rush Street, Chicago, Illinois 60611.
FOR FURTHER INFORMATION CONTACT:
Thomas W. Sadler, Senior Attorney, Railroad Retirement Board, 844 North
Rush Street, Chicago, Illinois 60611, telephone (312) 751-4513, TTD
(312) 751-4701.
SUPPLEMENTARY INFORMATION: The Board's rules and procedures regarding
the finality of decisions are presently contained in Board Orders,
which are not readily available to the public. The Board Order
regarding finality of decisions provides that finality of certain
decisions is based on a number of factors; adjudication based on these
factors is difficult to administer. Also the Board Order does not
contain any time limits on reopening.
The regulation addresses the finality of benefit decisions. This
rule is similar to the regulation of the Social Security Administration
(SSA) entitled ``Reopening and Revising Determinations and Decisions''
(20 CFR 404.987-404.996).
Section 261.1 describes who may open a final decision issued by the
agency. Section 261.2 describes when a final decision may be reopened.
All final decisions, except decisions awarding separation allowance
lump sum payments, may be reopened within 12 months of the date of
notice of such decision (see Sec. 261.2(d)); within 4 years of the date
of notice if new and material evidence is furnished or if there was an
adjudicative error not consistent with the evidence of record at the
time of adjudication; or at any time under the conditions set forth in
Sec. 261.2(c).
Section 261.3 provides that a change of legal interpretation or
administrative ruling upon which a decision was based is not a basis
for reopening.
Section 261.4 provides that the annuity beginning date will not be
changed if the annuitant was later found to be engaged in compensated
service for an employer, as defined in part 202 of the Board's
regulations, and the annuitant had no basis for knowing that he was
engaged in such service. This section also provides that the award of
an annuity would not be withdrawn if based upon incorrect records of
service where the erroneously credited service months do not exceed 6
months and the annuitant was not at fault in causing the error.
Section 261.5 provides that a decision may be reopened after the 1
year and 4 year time limits set forth in Sec. 261.2 of this part if the
Board had begun an investigation within those time limits. However, if
the Board does not diligently pursue the investigation it will not
reopen the decision if the decision was favorable to the annuitant.
Sections 261.6-261.8 are procedural and provide that if a decision
is reopened, the annuitant will be given notice and will have a right
to reconsideration and/or a hearing. Any hearing shall be conducted in
accordance with part 260 of the Board's regulations (20 CFR 260).
Section 261.9 provides that if a decision on a claim is reopened it
may also cause a reopening of a decision on a previous claim based upon
the same compensation record, even though the time limits for reopening
a decision on the first claim have passed.
[[Page 45713]]
Section 261.10 provides that where new evidence shows that the date
of birth used in the initial decision was incorrect or where the record
of compensation has been changed a decision may be revised even beyond
the time limits of Sec. 261.2 of this part if such reopening is
favorable to the annuitant, but any increase in benefits payable as the
result of the reopening shall be paid prospectively only.
Finally, Sec. 261.11 provides that the three-member Board has the
discretion to reopen or not to reopen any decision under these
regulations.
On December 21, 1995, the Board published this rule as a proposed
rule (60 FR 66203-66205). The Labor Member of the Board dissented from
publication of the proposed rule. His reasons for doing so were set
forth in the supplementary section of the proposed rule (60 FR 66204).
One comment was received, indicating agreement with the views of the
Labor Member. The views of the commentor were considered, but a
majority of the Board does not agree with those views. In addition to
the comment discussed above, the Board received letters from two
individuals requesting that final action on this rule be deferred to
allow rail labor and rail management to reach agreement on the
substance of the rule. Based upon comments received by rail labor and
management, to the effect that the Board should consider closely
paralleling the Social Security Administration's regulations's
regarding reopening, the Board has added a new paragraph (7) to
Sec. 261.2(c). This paragraph provides that the Board will reopen an
unfavorable decision to correct an error made by the Board which should
have been obvious at the time the initial decision was made. This
paragraph is identical to 20 CFR 404.988(c)(8) of the regulations of
the Social Security Administration. Proposed Sec. 261.2(c)(9) was
modified and Sec. 261.2(c)(10) was removed to make this regulation more
consistent with Social Security regulations.
The Board, with the concurrence of the Office of Management and
Budget, has determined that this is not a significant regulatory action
under Executive Order 12866; therefore, no regulatory impact analysis
is required. There are no information collections associated with this
rule.
List of Subjects in 20 CFR Part 261
Pensions, Railroad employees, Railroad retirement.
For the reasons set out in the preamble, chapter II of title 20 of
the Code of Federal Regulations is amended by adding part 261 to read
as follows:
PART 261--ADMINISTRATIVE FINALITY
Sec.
261.1 Reopening and revising decisions.
261.2 Conditions for reopening.
261.3 Change of legal interpretation or administrative ruling.
261.4 Decisions which shall not be reopened.
261.5 Late completion of timely investigation.
261.6 Notice of revised decision.
261.7 Effect of revised decision.
261.8 Time and place to request review of a revised decision.
261.9 Finality of findings when later claim is filed on same
earnings record.
261.10 Increase in future benefits where time period for reopening
has expired.
261.11 Discretion of the three-member Board to reopen or not to
reopen a final decision.
Authority: 45 U.S.C. 231f.
Sec. 261.1 Reopening and revising decisions.
(a) This part sets forth the Board's rules governing finality of
decisions. After the expiration of the time limits for review as set
forth in part 260 of this chapter, decisions of the agency may be
reopened and revised under the conditions described in this part, by
the bureau, office, or entity that made the earlier decision or by a
bureau, office, or other entity at a higher level, which has the claim
properly before it.
(b) A final decision as that term is used in this part means any
decision of the type listed in Sec. 260.1 of this chapter where the
time limits for review as set forth in part 260 of this chapter or in
the Railroad Retirement Act have expired.
(c) Reopening a final decision under this part means a conscious
determination on the part of the agency to reconsider an otherwise
final decision for purposes of revising that decision.
(d) New and material evidence as that phrase is used in this part
means evidence that may reasonably be expected to affect a final
decision, which was unavailable to the agency at the time the decision
was made, and which the claimant could not reasonably have been
expected to have submitted at that time.
Sec. 261.2 Conditions for reopening.
A final decision may be reopened:
(a) Within 12 months of the date of the notice of such decision,
for any reason;
(b) Within four years of the date of the notice of such decision,
if there is new and material evidence or there was adjudicative error
not consistent with the evidence of record at the time of adjudication;
or
(c) At any time if:
(1) The decision was obtained by fraud or similar fault;
(2) Another person files a claim on the same record of compensation
and allowance of the claim adversely affects the first claim;
(3) A person previously determined to be dead on whose earnings
record a survivor annuity is based is found to be alive;
(4) A claim was denied because of the absence of proof of death of
the employee, and the death is later established:
(i) By reason of an unexplained absence from his or her residence
for a period of 7 years; or
(ii) By location or identification of his or her body;
(5) The Social Security Administration has awarded duplicate
benefits on the same record of compensation;
(6) The decision was that the claimant did not have an insured
status, and compensation has been credited to the employee's record of
compensation in accordance with part 211 of this chapter:
(i) To enter items transferred by the Social Security
Administration which were credited under the Social Security Act when
they should have been credited to the employee's railroad retirement
compensation record; or
(ii) To correct an error made in the allocation of earnings to an
individual which, if properly allocated, would have given him or her an
insured status at the time of the decision and the evidence of these
earnings was in the possession of the Railroad Retirement Board or the
Social Security Administration at the time of the decision;
(7) The decision is wholly or partially unfavorable to a party, but
only to correct clerical error or an error that appears on the face of
the evidence that was considered when the determination or decision was
made;
(8) The decision found the claimant entitled to an annuity or to a
lump sum payment based on the earnings record of a deceased person, and
it is later established that:
(i) The claimant was convicted of a felony or an act in the nature
of a felony for intentionally causing that person's death; or
(ii) If the claimant was subject to the juvenile justice system, he
or she was found by a court of competent jurisdiction to have
intentionally caused that person's death by committing an act which, if
committed by an adult, would have been considered a felony or an act in
the nature of a felony;
[[Page 45714]]
(9) The claimant shows that it is to his or her advantage to select
a later annuity beginning date and refunds, by cash payment or setoff,
past payments applying to the period prior to the later beginning date,
subject, however, to the provisions of subpart D of part 217 and
Sec. 218.9 of this chapter;
(10) The decision is incorrect because of a failure to apply a
reduction, or the proper reduction, to the tier I component of an
annuity, but the Board shall apply the reduction only for the months
following the month the Board first takes corrective action.
(d) Revision of the amount or payment of a separation allowance
lump sum amount pursuant to section 6(e) of the Railroad Retirement Act
is limited to 60 days from the date of notification of the award of the
separation allowance lump sum payment.
Sec. 261.3 Change of legal interpretation or administrative ruling.
A change of legal interpretation or administrative ruling upon
which a decision is based does not render a decision erroneous and does
not provide a basis for reopening.
Sec. 261.4 Decisions which shall not be reopened.
The following decisions shall not be reopened:
(a) An award of an annuity beginning date to an applicant later
found to have been in compensated service to an employer under part 202
of this chapter on that annuity beginning date and who is found not to
be at fault in causing the erroneous award; provided, however, that
this exception shall not operate to permit payment of benefits for any
month in which the claimant is found to be engaged in compensated
service.
(b) An award of an annuity based on a subsequently discovered
erroneous crediting of months of service and compensation to a claimant
where:
(1) The loss of such months of service and compensation will cause
the applicant to lose his or her eligibility for an annuity previously
awarded;
(2) The erroneously credited months of service do not exceed six
months; and
(3) The annuitant is found not to be at fault in causing the
erroneous crediting.
(c) An erroneous award of an annuity where the error is no greater
than one dollar per month per annuity affected.
(d) An erroneous award of a lump sum or accrued annuity payment
where the error is no greater than $25.00.
Sec. 261.5 Late completion of timely investigation.
(a) A decision may be revised after the applicable time period in
Sec. 261.2(a) or Sec. 261.2(b) of this part expires if the Railroad
Retirement Board begins an investigation into whether to revise the
decision before the applicable time period expires and the agency
diligently pursues the investigation to the conclusion. The
investigation may be based on a request by a claimant or on action by
the Railroad Retirement Board.
(b) Diligently pursued for purposes of this section means that in
view of the facts and circumstances of a particular case, the necessary
action was undertaken and carried out as promptly as the circumstances
permitted. Diligent pursuit will be presumed to have been met if the
investigation is concluded and, if necessary, the decision is revised
within 6 months from the date the investigation began.
(c) If the investigation is not diligently pursued to its
conclusion, the decision will be revised if a revision is applicable
and if it is favorable to the claimant. It will not be revised if it
would be unfavorable to the claimant.
Sec. 261.6 Notice of revised decision.
(a) When a decision is revised, notice of the revision will be
mailed to the parties to the decision at their last known address. The
notice will state the basis for the revised decision and the effect of
the revision. The notice will also inform the parties of the right to
further review.
(b) If a hearings officer or the three-member Board proposes to
revise a decision, and the revision would be based only on evidence
included in the record on which the prior decision was based, all
parties will be notified in writing of the proposed action. If a
revised decision is issued by a hearings officer, any party may request
that it be reviewed by the three-member Board, or the three-member
Board may review the decision on its own initiative.
Sec. 261.7 Effect of revised decision.
A revised decision is binding unless:
(a) The revised decision is reconsidered or appealed in accord with
part 260 of this chapter;
(b) The three-member Board reviews the revised decision; or
(c) The revised decision is further revised consistent with this
part.
Sec. 261.8 Time and place to request review of a revised decision.
A party to a revised decision may request, as appropriate, further
review of the decision in accordance with the rules set forth in part
260 of this chapter.
Sec. 261.9 Finality of findings when later claim is filed on same
earnings record.
If two claims for benefits are filed on the same record of
compensation, findings of fact made in a decision in the first claim
may be revised in determining or deciding the second claim, even though
the time limit for revising the findings made in the first claim has
passed. However, a finding in connection with a claim that a person was
fully or currently insured at the time of filing an application, at the
time of death, or any other pertinent time, may be revised only under
the conditions stated in Sec. 261.2 of this part.
Sec. 261.10 Increase in future benefits where time period for
reopening has expired.
If, after the time period for reopening under Sec. 261.2(b) of this
part has expired, new evidence is furnished showing a different date of
birth or new evidence is furnished which would cause a correction in a
record of compensation as provided for in part 211 of this chapter and,
as a result of the new evidence, increased benefits would be payable,
the Board will pay increased benefits, but only for the months
following the month the new evidence is received.
Sec. 261.11 Discretion of the three-member Board to reopen or not to
reopen a final decision.
In any case in which the three-member Board may deem proper, the
Board may direct that any decision, which is otherwise subject to
reopening under this part, shall not be reopened or direct that any
decision, which is otherwise not subject to reopening under this part,
shall be reopened.
Dated: August 21, 1997.
By Authority of the Board.
For the Board,
Beatrice Ezerski,
Secretary to the Board.
[FR Doc. 97-23080 Filed 8-28-97; 8:45 am]
BILLING CODE 7905-01-P
